Petition — Chauffeurs, Local Union No. 391 v. Pilot Freight Carriers, Inc.

Supreme Court brief1978

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IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1977

CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION No.

891, AFFILIATED WITH THE INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

PILOT FREIGHT CARRIERS, INC.,

AND

NATIONAL LABOR RELATIONS BOARD,

Respondents.

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID PREVIANT, Esquire

RoBerRT M. BAPTISTE, Esquire

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 624-6945

ANGELO V. ARCADIPANE, Esquire

WHAIAM W. OSBORNE, JR., Esquire

1819 H Street, N.W. :

Washington, D.C. 20006

(202) 785-3525

Page

e x 2

ER . NE a a OD OT Oe 2

QUESTIONS PRESENTED 2

e e 2

STATEMENT ET St Rn ͤ — 2

r ... 2

1111 I oi rcrncentetenteinenansadaniibiaion 4

2. Line-Haul Dispatchers 4

. . 5

J ID cactinitinttnisenctimneneenncistnseccenin 5

B. The Decisions of the Board and the Court 6

REASONS FOR GRANTING THE WRIT ..................... 8

õK 16

r. ⁊ ⁊ↄ¼D——ʃ T 1a

r . eae LN 20a

ß 93a

411 96a

CITATIONS

Cases:

Allied Chemical & Alkali Workers v. Pittsburgh

Plate Glass Co., 404 U.S. 157 (19717 ian

Baltimore Transit Co., 92 NLRB 688 (1950)

Baltimore Transit Co., 92 NLRB 1260 (1951) .......

Capital Transit Co., 98 NLRB 141 (195277

Carey Transportation, Inc., 119 NLRB 332 (1957)

Cincinnati Transit Co., 121 NLRB 765 (1958) .......

Corrie Corp. v. NLRB, 375 F.2d 149 (4th Cir.

. Ä

Eastern Greyhound Lines, 138 NLRB 8 (1962)

Eastern Greyhound Lines v. NLRB, 3837 F.2d 84

i a

GAF Corp. v. NLRB, 524 F.2d 492 (5th Cir. 1975)

Gate City Transit Lines, 81 NLRB 79 (19499

Greyhound Airport Services, Inc., 189 NLRB 291

Gulf Bottlers, Inc., 127 NLRB 850 (1960), en-

forced, 298 F.2d 297 (D.C. Cir. 1961), cert.

denied, 369 U.S. 843 (1962)

Harmon Industries, Inc., 226 NLRB No. 75

a a —

Jas. H. Matthews & Co. v. NLRB, 354 F.2d 482

(8th Cir. 1966), cert. denied, 384 U.S. 1002

EEX

NLRB v. Bell Aerospace, Division of Textron, Inc.,

Se ns I

NLRB v. Broyhill Co., 514 F.2d 655 (9th Cir.

%%% ˙ ͤ1—— —

NLRB v. Detroit Edison Co., 587 F.2d 239 (6th

NLRB v. Doctors’ Hospital of Modesto, Inc., 489

SO A

NLRB v. E. C. Atkins & Co., 331 U.S. 398 (1947)

NLRB v. Florida Agricultural Supply Co., 328 F. 2d

xf I RC a

NLRB v. Gray Line Tours, Inc., 461 F.2d 763 (9th

RISER ta SE SERN .

Page

9,11

12, 13

12,14

CITATIONS—Continued

Page

NLRB v. Hearst Publications, Inc., 322 U.S. 111

1 ————ů—ůůů— 8, 9, 10, 11

NLRB v. Pilot Freight Carriers, Inc., —— F.2d

——, 95 LRRM 2900 (4th Cir. 1977) 2

NLRB v. Swift & Co., 292 F.2d 561 (1st Cir.

1110 —ͤ 2 ——— 12

NLRB v. United Insurance Co., 390 U.S. 254

ee 9, 10, 11

New England Transportation Co., 90 NLRB 539

__- d„W»p—T—LFü 12

Parma Water Lifter Co., 102 NLRB 198 (1953),

enforced, 211 F.2d 258 (9th Cir. 1954457 10

Pittsburgh Glass Co. v. NLRB, 313 U.S. 146

„ ——— 10

Rochester Telephone Corp. v. United States, 307

e y 8

Street Railway Co., 98 NLRB 782 (19517 12

Spector Freight Systems, 216 NLRB 551 (1975) 14

Universal Camera Corp. v. NLRB, 340 U.S. 474

r 8, 10, 11

Wichita Eagle & Beacon Publishing Co., Inc. v.

NLRB, 480 F.2d 52 (10th Cir. 1973), cert. de-

„ ee 11

Wisconsin River Valley District Council of Car-

penters v. NLRB, 532 F.2d 47 (7th Cir. 1967) 11

Yellow Cab Co., 131 NLRB 239 (196177 14

Statute:

National Labor Relations Act, as amended, (61

Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seg.) 2

PPP 8

Section 2(111)/:ꝛ 2, 8, 9, 10, 11, 12, 13, 14, 15, 16

Section 8 (a) (1), (8), (5) 3

e ö 2

CITATIONS—Continued

Miscellaneous:

Davis, Administrative Law Treatise, Vol. 4,

L annccccmntnstiiiienseeeni

Jaffe, Judicial Review: Question of Law, 69 Harv.

S. Rep. No. 105, S. 1126, 80th Cong. Ist Sess.

(1947)

—U—h— ũi—— Rũ4 ͤh K» : ꝶ/,ꝙʒ 0 h n P G—wꝛͤœꝛ2 RE

IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

No.

CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION No.

391, AFFILIATED WITH THE INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Petitioner,

Por FREIGHT CARRIERS, INC.,

AND

NATIONAL LABOR RELATIONS BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, Chauffeurs, Teamsters and Helpers Local

Union No. 391, affiliated with the International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America (“the Union”), respectfully requests

that a writ of certiorari issue to review a judgment of

the United States Court of Appeals for the Fourth Cir-

cuit entered in this case on June 29, 1977.

OPINIONS BELOW

The opinion of the court of appeals is not yet officially

reported but can be found at 95 LRRM 2900 (App. A,

infra, pp. la-18a). The Decision and Order of the Na-

tional Labor Relations Board (“the Board”) was issued

on December 5, 1975 and is reported at 221 NLRB 1026

(App. B, infra, pp. 20a-92a).

JURISDICTION

The judgment of the court of appeals was entered on

June 29, 1977 (App. A, infra, p. 19a); its jurisdiction

was invoked pursuant to Section 10(e) of the National

Labor Relations Act, as amended (61 Stat. 136, 73 Stat.

519, 88 Stat. 395, 29 U.S.C. Sec. 151, et seg.) . The juris-

diction of this Court is invoked under 28 U.S.C. § 1254

(1).

QUESTIONS PRESENTED

1. Whether the court, in rejecting the Board’s conclu-

sion that the Company’s dispatchers are “employees”, ap-

plied an erroneous standard of judicial review.

2. Whether the court, whatever standard of review is

applied, substituted an erroneous construction of Section

2(11) of the Act for a correct, long established construc-

tion of that Section by the Board.

STATUTE INVOLVED

The provisions of the National Labor Relations Act in-

volved in this case are reproduced in Appendix C, infra,

pp. 93a-95a.

STATEMENT

A. Pertinent Facts

Pilot Freight Carriers, Inc. (“the Company”) is a cer-

tificated common carrier, with its main terminal at Ker-

nersville, North Carolina. In August 1973 the Union

obtained recognition as the exclusive bargaining rep-

resentative of the Company’s Kernersville office and

clerical personnel, a unit which included local, line-haul,

and central dispatchers. Within a week thereafter, the

Company lodged a unit clarification petition with the

Board which sought a determination of whether all of

its dispatchers were employees“, and thus properly in-

cluded in the represented unit, or “supervisors”. In the

midst of that proceeding, however, the Company began

a campaign of coercion against its dispatchers which in-

cluded threats, interrogations, and other conduct designed

“to influence the result” of the unit clarification case

(App. B, infra, p. 28a). Upon the filing of an unfair

labor practice charge by the Union, the Board discon-

tinued the unit clarification case and instituted an un-

fair labor practice proceeding which culminated in a con-

clusion by it that the Company violated Sections 8 (a

(1), (3) and (5) of the Act. The court of appeals has

refused to enforce the Board’s Order in any respect.’

The critical issue before the Board and court was

whether the Company’s dispatchers are “employees” with-

in the meaning of the Act, or “supervisors” of the Com-

pany’s drivers and thus excluded from the Act’s cover-

age. A careful comparison of the decisions of the Board

and the court reveals no significant disagreement between

them concerning what these dispatchers actually do and

do not do, although there are of course considerable dif-

ferences over the proper characterization of these “hard

facts and the ultimate conclusions to be drawn from

them. The pertinent facts can be summarized as follows.

1The Union was the charging party before the Board and an

intervenor before the court of appeals. In both forums the Company

was the respondent.

2 The Board’s Administrative Law Judge determined that [t] here

are no significant credibility conflicts in this record .. . there are

The Company employs three types of dispatchers at

its Kernersville terminal: local, line-haul and central

dispatchers. Local dispatchers deal with the pickup and

delivery of freight within a 50-mile radius of Kerners-

ville ; line-haul dispatchers are responsible for checking

in and out of the Kernersville terminal, drivers trans-

porting freight originating from or destined for points

beyond this radius. The Company’s central dispatchers

are concerned with the efficient movement of freight and

equipment throughout its system.

1. Local Dispatchers. The job of local dispatchers

essentially entails the initial assignment of drivers to

val. ous runs and, thereafter, the relay of additional pick-

up instructions to them in response to requests from

customers and salesmen received throughout the day. The

initial assignment of a particular driver to a particular

run is governed by detailed provisions in the collective

bargaining agreement between the Company and the

Union covering drivers. “It is basically the same thing

every day...” (App. A, infra, p. 7a).

Local drivers are dispatched to pickups throughout the

day according to their proximity to the pickup point, and

wre of equipment and space required to accommodate

e '

2. Line-Haul Dispatchers. The line-haul dispatchers’

duties primarily involve selecting a tractor for a loaded

trailer, weighing the trailer, checking the driver’s trip

card prepared by the dispatch clerk, and punching road

drivers in and out.

no significant points in the record at which a witness for one si

testified that a hard fact—as distinguished from a poh mo a

testified to by a witness for the other side was not so.” (App. B

infra, p. 45a). “Thus”, as the Board stated, “the real problem was

one of drawing conclusions from lengthy testimony”. (Id. at 22a).

* The line-haul dispatchers and the dispatch clerks work

, as a

team; no task is performed by one which is not likewise per-

Drivers are dispatched to runs, regardless of distance,

on a first-in, first-out system established by their Union

contract. The job of calling in drivers for trips is the

principal duty of the dispatch clerks. On occasion the

first-in, first-out procedure is varied in order to expedi-

tiously move freight and equipment (App. A, infra, p.

12a; App. B, infra, pp. 24a-25a). Similarly on occasion

a driver may arrive unreasonably late or in an apparent

state of intoxication. In these instances, the dispatchers’

only permitted recourse is to refer him to a Driver

Supervisor, at least one of whom is always on duty at

Kernersville.

3. Central Dispatchers. All but a small fraction of

the central dispatchers’ time is devoted to two functions.

The first and major one is to maintain a constant ac-

counting of the location and destination of every piece

of equipment in the Company's system.“ Central dis-

patchers also assign departure times to loads leaving

Kernersville and serve as line-haul dispatchers for other

terminals when they are closed. Finally, a small fraction

of the central dispatchers’ time is devoted to answering

calls from road drivers concerning various matters. Some

calls are referred to the Driver Supervisor. In respond-

ing to others, the central dispatchers’ overriding concern

is the efficient movement of freight for, with but few

exceptions, these dispatchers do not personally know the

drivers. Drivers merely identify themselves to the dis-

patchers by trailer number, not by name.

4. Driver Supervisors. As already noted, the Company

had on ducy at all times at the Kernersville terminal

officials designated as Driver Supervisors. All parties,

the Board, and the court uniformly acknowledge that

formed by the other. It is undisputed that dispatch clerks are “em-

ployees” within the meaning of the Act, and not “supervisors”.

At the time of the hearing, the Company maintained 41 terminals

throughout the East Coast and extending west to Cleveland.

the Driver Supervisors are, in the full statutory sense,

the first line supervisors of over-the-road drivers (App.

A, infra, pp. 14a, 16a; App. B, infra, p. 22a). They pos-

sess and exercise authority to evaluate the performance

of road drivers; to reprimand and otherwise discipline

them; to relieve a driver from duty; to handle grievances;

and to effectively recommend discharges. Overseeing the

work of road drivers is their sole job.

Dispatchers do not hire drivers; have no authority to

reprimand, discharge or take other job action against

them; nor do they evaluate their performance.

B. The Decisions of the Board and the Court

A unanimous panel of the Board decided that the

Company’s workers in all three dispatcher classifications

are “employees” entitled to the Act’s protection. In the

Board’s judgment, the Company’s Driver Supervisors,

and not its central and line-haul dispatchers, are re-

sponsible for the “actual supervision of over-the-road

drivers”; and the Company’s Terminal Manager, not its

local dispatchers, “has authority to hire, discharge, and

discipline local drivers and to direct them to the extent

not covered by company procedures.” (App. B, infra,

pp. 22a, 26a). The Board also found that the duties

of the Company’s dispatchers are circumscribed by

written Company directives, federal regulations, and the

drivers’ collective bargaining agreements so as to elimin-

ate the exercise of independent discretion by dispatchers

and thoroughly routinize their duties (App. B, infra,

pp. 22a-23a, 25a-26a). Most significantly, it was con-

cluded that while certain activities of the dispatchers

may have an impact on a driver’s working conditions and

pay, the impact is not by design but merely incidental

to the dispatchers’ paramount concern for the movement

of equipment, and consequently “not in itself indicative

of the exercise of supervision within the meaning of the

Act”. (App. B, infra, p. 28a).

The court rejected the Board’s conclusions in their

entirety for the stated reason that they were not sup-

ported by substantial evidence and found that each of

the Company’s dispatchers is a statutory supervisor. In

making this judgment, however, the court relied largely

upon the same “hard facts” which the Board had con-

sidered not decisive. Regarding local dispatchers, the

court observed that they are able to alter the contractually

specified dispatching procedure when “necessary to move

freight” (App. A, infra, p. 7a); that dispatching pick-

ups “could determine whether and how much overtime was

allocated to that driver“ (Id. at p. 8a); and that dis-

patchers could select casual casual drivers for dispatch

“according to availability and location” (Id. at p. 7a). It

then reversed the Board’s judgment that these facts do

not constitute the “responsible direction” of employees

because, as the court states, [t] here is a substantial pos-

sibility that the fraternal feelings engendered by union

membership would threaten the ability of a local dis-

patcher with such responsibilities to exercise his authority

in his company’s best interest” (App. A, infra, p. 10a).

Line-haul dispatchers refer inebriated and unreasonably

late drivers to the Driver Supervisor and are in a position

where they may vary contractual dispatching procedures

“if necessary to meet the company’s obligation to deliver

freight on time” (Id. at p. 15a). Because “[u]ndivided

loyalty from its line-dispatchers in the exercise of their

discretion was essential to the company”, they too are

supervisors according to the court (Id. at p. 15a).

Finally, since central dispatchers may allow drivers to

vary their assignments, “(ijt is clear that there was

a substantial possibility that a fraternal union relation-

ship between central dispatchers and drivers could have

impaired the dispatchers’ ability to make their decisions

in the company’s best interest“ (Id. at p. 17a). For this

reason, the court concluded they are also “supervisors”.

In summary, the Board concluded that the dispatchers

do not responsibly direct employees because their real

concern is the movement of equipment and freight, and

the court disagreed.

REASONS FOR GRANTING THE WRIT

1. The court of appeals applied an erroneous standard

of review in rejecting the Board’s determination that

the Company’s dispatchers are “employees” and not

“supervisors” within the meaning of Sections 2(3) and

2(11) of the Act, respectively. Specifically, the court

substituted its judgment for the Board’s expertise regard-

ing the dispatchers’ status under the Act thus exceeding

the bounds of its reviewing authority. Reaffirmation by

this Court of the deference which an appellate court must

afford an application by the Board of the statutory de-

finition in Section 2(11) to particular facts is essential to

the sound administration of the Act and of significance to

administrative procedure generally.

This Court has restricted the scope of judicial review

where an administrative agency, such as the Board,

makes a mixed determination of law and fact within the

field of its specialized expertise, since that type of de-

termination carries with it “the authority of expertness

which courts do not possess and therefore must respect“.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951). Thus, an appellate court must accept an agency’s

“expert” determination if it has “‘warrant in the rec-

ord’ and a reasonable basis in law”. NLRB v. Hearst

Publications, Inc., 322 U.S. 111, 131 (1944). Proper

application of the Hearst standard requires that the re-

viewing court limit its inquiry to whether there is a

rational basis for the conclusions approved by the ad-

ministrative body’.” Rochester Telephone Corp. v. United

States, 307 U.S. 125, 146 (1939) (citations omitted), as

— -

cited in NLRB v. Hearst Publications, Inc., supra, 322

U.S. at 131.

The Hearst standard of review has become recognized

as a fundamental principle of administrative law (See

e.g., 4 DAVIS, ADMINISTRATIVE LAW TREATISE, § 30.05 at

213-221 (1958 ed.); Jaffe, Judicial Review: Question of

Lav 69 Harv. L. Rev. 239, 251-257, 263-264 (1955) )

particularly applicable to determinations by the Boafd

involving an evaluation of the significance of facts in

terms of specialized statutory definitions. Allied Chemi-

cal & Alkali Workers v. Pittsburgh Plate Glass Co., 404

U.S. 157, 166 (1971).

After its examination of the lengthy record in this

case, the Board concluded that the various Company dis-

patchers are statutory “employees” rather than “super-

visors” within the meaning of Section 2(11) and there-

fore entitled to the Act’s protection. Despite the great

volume of evidence presented to the Administrative Law

Judge, there was no conflict in the record regarding the

“hard facts”.° The Board’s determination that the Com-

pany’s dispatchers are “employees” was therefore not

a finding of fact but rather a conclusion based upon es-

sentially undisputed facts. Such a conclusion with respect

to the application of Section 2(11) was an exercise of the

Board’s peculiar expertise as the agency uniquely able

to consider “the policy and purpose of the Act, the cir-

cumstances and background of particular employment

The narrow Hearst standard of review is only applicable where,

as here, the administrative determination is within an area of the

agency’s specialized expertise. When an agency’s determination

is not within its special expertise, but rather within a field in which

the reviewing court has equal competence, the court has a signifi-

cantly greater scope of review. See NLRB v. United Insurance Co.,

390 U.S. 264, 260 (1968).

See n. 2, supra, pp. 2-3, and accompanying text.

relations, and all the hard facts of industrial life“.

NLRB v. E.C. Atkins & Co., 331 U.S. 398, 403 (1947).’

The Board’s considered judgment on the issue of the

dispatchers’ status under the Act was, accordingly, due

substantial deference from the court of appeals as re-

quired by this Court’s Hearst standard.“ Instead, the

court of appeals ignored the Board’s expertness and

treated its conclusions that the dispatchers were “employ-

ees” rather than “supervisors” as no more than an ad-

ministrative finding of fact, reviewable under the stand-

ard announced in Universal Camera Corp. v. NLRB,

supra (App. A, infra, pp. 4a, 9a, 10a, 12a, 17a). The

When Congress enacted the statutory exclusion of supervisors

from the Act in 1947, it adopted as the definition of “supervisor” in

Section 2(11) the test which the Board had previously employed

to ascertain the status of “foremen” in unit determination pro-

ceedings. S. Rep. No. 105, 8.1126, Soth Cong., Ist Sess. 4 (1947),

cited in Parma Water Lifter Co., 102 NLRB 198, 202 (1953), enf'd,

211 F.2d 258 (9th Cir. 1954); Gulf Bottlers, Inc., 127 NLRB 850,

860, fn. 6 (1960), enf’d, 298 F.2d 297 (D.C. Cir. 1961), cert. denied,

369 U.S. 843 (1962). Congress thus relied upon the Board’s expertise

not only for the interpretation and application of Section 2(11)

but for the very content of that Section of the Act. By contrast, at

the same time it enacted Section 2(11), Congress removed the issue

of whether workers should be excluded from the Act as “independent

contractors” from the Board’s administrative expertise by specifying

that common law principles of agency should govern. See NLRB v.

United Insurance Co., supra, 390 U.S. at 260. Prior to Congress’

adoption of the common law agency test for “independent contrac-

tors” this Court had prescribed judicial deference on that issue to

the Board’s expertise. See NLRB v. Hearst Publications, Inc., supra.

® The issue of the supervisory status of the Company's dispatchers

was originally to be determined in a unit clarification proceeding.

The Company aborted that proceeding by its commission of serious

unfair labor practices. This Court has accorded the Board broad

discretion in its unit determinations. NLRB v. Hearst Publications

Inc., supra, 322 U.S. at 132-135; Pittsburgh Glass Co. v. NLRB,

313 U.S. 146 (1941). The Board should have no less discretion in

determining the supervisory status of the Company’s dispatchers

in the context of an unfair labor practice case. See NLRB v. E. C.

Atkins & Co., supra. See also Corrie Corp. v. NLRB, 375 F.2d 149,

155 (4th Cir. 1967).

court thus disregarded the applicable decisions of this

Court which have carefully differentiated between the ap-

pellate review of administrative findings of fact, and re-

view of the application by the Board of broad statutory

terms, within the agency’s field of expertise, to particu-

lar facts. NLRB v. Hearst Publications Inc., supra, 322

U.S. at 130-131; Allied Chemical & Alkali Workers v.

Pittsburgh Plate Glass Co., supra, 404 U.S. at 166;

NLRB v. United Insurance Co., supra, 390 U.S. at 260;

Universal Camera Corp. v. NLRB, supra, 340 U.S. at

486, fn. 22. See NLRB v. Bell Aerospace, Division of

Textron, Inc., 416 U.S. 267, 311 (1974) (Dissenting

opinion of Justice White). Its adoption of an erroneous

standard of review, far from a mere error of semantics,

permitted the court to ignore the Board’s informed judg-

ment and evaluate, de novo, the significance of essentially

undisputed record evidence in terms of Section 2(11).

Significantly, the misapprehension of the court of ap-

peals concerning the proper scope of its review in cases

such as this one is not unique, but is characteristic of

existing judicial confusion on this question. While some

decisions reflect proper recognition of the narrow Hearst

standard (See e.g., NLRB v. Broyhill Co., 514 F.2d 655,

658 (9th Cir. 1975); NLRB v. Doctors’ Hospital of

Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973); Wich-

ita Eagle & Beacon Publishing Co., Inc. v. NLRB, 480

F.2d 52, 54-55 (10th Cir. 1973), cert. denied, 416 U.S.

982 (1974); Jas. H. Matthews & Co. v. NLRB, 354 F.2d

432, 435 (8th Cir. 1966), cert. denied, 384 U.S. 1002

(1966)), others, as in the present case, reflect an er-

roneous application of the “substantial evidence” standard

of review. See e.g., Wisconsin River Valley District

Council of Carpenters v. NLRB, 532 F.2d 47, 50 (7th

Cir. 1967); NLRB v. Gray Line Tours, Inc., 461 F.2d

763, 764 (9th Cir. 1972); Eastern Greyhound Lines v.

NLRB, 337 F.2d 84 (6th Cir. 1964); NLRB v. Florida

Agricultural Supply Co., 328 F.2d 989, 991 (5th Cir.

1964). In a third category of decisions, proper deference

is accorded the Board’s expertise, although the Hearst

standard is not expressly recited. See eg., NLRB V.

Detroit Edison Co., 587 F.2d 289, 242 (6th Cir. 1976) ;

GAF Corp. v. NLRB, 524 F.2d 492, 494-495 (5th Cir.

1975); NLRB v. Swift & Co., 292 F.2d 561, 563 (Ist

Cir. 1961). Needless to say, it is essential to the ad-

ministration of the Act that there be no confusion among

the circuit courts regarding such an important question.

The decision below is thus in conflict with decisions

of this Court, and illustrative of a not uncommon misap-

prehension among courts generally which should be cor-

rected.

2. Whatever standard of review is applicable, the

court of appeals repudiated a long established construc-

tion of Section 2(11) by the Board and applied, in its

stead, an erroneous one. This aspect of the court’s de-

cision is of substantive significance to the administra-

tion of the Act and to the broad class of workers neces-

sarily deprived of the Act’s protection by the court’s

errant construction of this Section.

Since shortly after the enactment of Section 2(11)

in 1947, the Board has consistently held that workers,

whose primary function relates to the movement of

equipment or materials with only an indirect and inci-

dental effect upon the employment conditions of fellow

workers, were not intended by Congress to be excluded

as “supervisors” from the Act’s coverage. Gate City

Transit Lines, 81 NLRB 79 (1949) ; New England Trans-

portation Co., 90 NLRB 539, 540 (1950); Baltimore

Transit Co., 92 NLRB 688, 692 (1950); Baltimore

Transit Co., 92 NLRB 1260, 1264 (1951); Street Rail-

way Co., 93 NLRB 782 (1951); Capital Transit Co.,

98 NLRB 141, 148 (1952); Cincinnati Transit Co., 121

NLRB 765, 767 (1958); Eastern Greyhound Lines, 138

NLRB 8, 13-14 (1962); Greyhound Airport Services,

Inc., 189 NLRB 291, 293 (1971); Harmon Industries,

Inc., 226 NLRB No. 75 (1976). In the Board’s judg-

ment, the direction and control of equipment, as con-

trasted to personnel, does not constitute the use of “in-

dependent judgment” in the “responsible direction” of

employees sufficient to bring an individual within the

statutory definition of “supervisor”. Baltimore Transit

Co., supra, 92 NLRB at 692.

Here, the Board concluded that the Company’s central

dispatchers “are like the radio dispatchers in The Balti-

more Transit Company and the Baltimore Coach Com-

pany, 92 NLRB 1260 (1951), merely exerting direction

and control over the movement of equipment, and the

direction of personnel by them occurs only as an inci-

dental result, hence they are not supervisors within the

meaning of Section 2(11) of the Act.” (Citation

omitted). (App. B, infra, pp. 28a-24a). The Board

similarly concluded that the line-haul dispatchers are

not “supervisors” since “(ijn performing [their] duties

the line-haul dispatcher[s’] overriding interest and con-

cern—like that of the central dispatcher in his work—

is the movement of equipment in the fastest, most eco-

nomical way possible. The incidental impact this may

have on drivers is not in our opinion the exercise of

supervision within the meaning of the Act.” (Jd. at

25a). With respect to its conclusion that the Company’s

local dispatchers were “employees” entitled to the Act’s

protections, the Board observed that the local dispatchers’

decisions which impacted upon driver employees were

“essentially dictated by economic considerations, for

which the Employer has provided comprehensive dis-

patching procedures.” (Id. at p. 26a).

Because the court’s opposite conclusions are based upon

factors which the Board either explicitly or implicitly

found not determinative, its decision operates as an ef-

fective reversal of the Baltimore Transit doctrine. More-

over, the duties of the Company’s dispatchers which the

court viewed as indicative of supervisory status are duties

typical of most dispatchers in the trucking industry and,

indeed, the transportation industry as a whole.’ Accord-

ingly, at the very least, the rights under the Act of some

18,000 truck dispatchers in this country” will be im-

paired if the court’s decision is permitted to stand.

Compounding its erroneous reversal of the Board’s

Baltimore Transit doctrine, the court fashioned a new test

for construing Section 2(11) which is plainly inconsistent

with Congress’ intent, and which would deprive an even

broader class of workers of their rights under the Act.

Under the court’s construction of Section 2(11), workers

are “supervisors” whenever, in the court’s view, there

exists “a substantial possibility that fraternal feelings

arising from [their] unionization . . . [will] interfere

with the proper exercise of [their] power“ (App. A,

infra, p. 4a, emphasis added. See also App. A, infra,

pp. 10a, 15a, 17a).

»The court relied primarily upon three factors in support of its

rejection of the Board's determination that the dispatchers are

“employees”: that the dispatchers refused to permit intoxicated

drivers to make a run (App. A, infra, pp. 14a-l15a); that the dis-

patchers had authority to vary routes, permit time-off “and cause

drivers to incur” overtime (Id. at 10a, 15a, 17a); and that the

dispatchers had authority to make route assignments. The

in a number of cases not cited by the court, has rejected each o

these factors as indicative of supervisory status where, as here,

they are incidental to the movement of freight or equipment. See

e.g., Spector Freight Systems, 216 NLRB 551, 551-554 (1975) ; Grey-

hound Airport Services, supra, 189 NLRB at 293-294; Carey Trans-

portation, Inc., 119 NLRB 332, 333-334 (1957) ; Yellow Cab, Inc., 131

NLRB 239, 240-241 (1961); Capital Transit Co., supra, 98 NLRB

at 144 (1952).

The Bureau of Labor Standards advises that 18,256 individuals

were employed as dispatchers in the trucking industry alone in 1974,

based upon projected seasonally adjusted 1970 census data. This

figure does not include dispatchers in other segments of the trans-

portation industry such as taxi cab, bus and airline dispatchers.

Not only is the source of this new test obscure, but the

test itself is contrary to Congress’ intended construction

of Section 2(11). Congress concededly enacted Section

2(11) to prevent the interference with management pre-

rogatives which might result from the unionization of

tea am The test adopted by the court, however, sub-

tutes the reason for Congress’ exclusion of supervisors

2228 which Congress formulated for ascer-

taining that status. The court’s test necessarily excludes

all middle level classifications of workers such as “lead-

men”, “set-up men” and “straw bosses” from the Act’s

coverage, contrary to Congress’ explicit intentions. S.

Rep. No. 105, S. 1126, Soth Cong., Ist Sess. 4 (1947).

Indeed, such a test logically extended deprives innumer-

able rank-and-file workers of statutory protection since,

in almost any instance, an employer can contend that

there is “a substantial possibility that fraternal feelings

arising from [their] unionization [will] interfere with

the proper exercise of [their] power” (App. A, infra, p.

4a).

CONCLUSION

The issue of the proper standard of review to be ap-

plied to the Board’s construction of Section 2(11) of the

Act is of overriding importance to the administration

of the Act, as is the issue of the status of dispatchers.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

DAVID PREVIANT, Esquire

ROBERT M. BAPTISTE, Esquire

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 624-6945

ANGELO V. ARCADIPANE, Esquire

WILLIAM W. OSBORNE, JR., Esquire

1819 H Street, N.W.

Washington, D.C. 20006

(202) 785-3525

Attorneys for Petitioner

Appendices

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1089

1 NATIONAL LABOR RELATIONS BOARD,

Petitioner,

and

CHAUFFEURS, TEAMSTERS and HELPERS

LOCAL UNION No. 391,

Intervener,

versus

PILOT FREIGHT CARRIERS, INC.,

Respondent.

Application for Enforcement of an Order of the

National Labor Relations Board

Argued September 15, 1976 Decided June 29, 1977

Before HAYNSWORTH, Chief Judge, WINTER

and BUTZNER, Circuit Judges

Andrew F. Tranovich, Attorney, National Labor Rela-

tions Board (John S. Irving, General Counsel, John E.

Higgins, Jr., Deputy General Counsel, Carl L. Taylor,

Associate General Counsel, Elliott Moore, Deputy As-

sociate General Counsel, Paul J. Spielberg, Attorney, Na-

tional Labor Relations Board on brief) for Petitioner;

Robert M. Baptiste (Gary S. Whitlen and Angelo V.

Arcadipane on brief) for Intervenor; John O. Pollard

(Blakeney, Alexander & Machen on brief) for Respondent.

HAYNSWORTH, Chief Judge:

This is a petition for enforcement of the National La-

bor Relations Board’s order against Pilot Freight Car-

riers, Inc. The Board found that Pilot’s dispatchers at

its Kernersville, N. C. terminal were “employees” and

not “supervisors” within the meaning of §§2(3) and

2(4) of the National Labor Relations Act, 29 U.S.C.A.

§§ 152 (3), 152 (11) (1973) and that Pilot had violated

Section 8(a) (1), (3) and (5) of the Act, 29 U.S.C.

§§ 158 (a) (1), (3) and (5), (1973) by coercively inter-

rogating its employees, by issuing job descriptions, and

instituting a supervisory training program intended to

deprive its dispatchers of their “employee” status and by

failing to consult the Union before issuing the job de-

scriptions and instituting the training program. In re-

sponse to the Board’s petition Pilot contends that it was

free to question the dispatchers, issue the job descriptions,

and institute the training program because the dis-

patchers were “supervisors” and thus not protected by

§ 8(a) (1) and (5).

Section 2(3) excludes “any individual employed as a supervisor”

from the definition of employee“.

Section 2(11) defines “supervisor” as follows:

“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 em-

ployees, or responsibly to direct them, or to adjust their grievances,

or effectively to recommend such action, if in connection with the

foregoing the exercise of such authority is not of a merely routine

or clerical nature, but requires the use of independent judgment.”

We need not evaluate every function performed by each

type of dispatcher in order to determine whether the

Board’s determination that they were not supervisors

within the meaning of § 2(11) is supported by substan-

tial evidence. It is well settled that “§2(11) is to be

read in the disjunctive with the existence of any one of

the statutory powers, regardless of the frequency of its

exercise, being sufficient to confer supervisory status upon

the employee.” Pacific Intermountain Express Co. v.

NLRB, 412 F. 2d 1, 3 (10th Cir. 1969); accord NLRB

v. Metropolitan Petroleum Co., 506 F. 2d 616, (1st Cir.

1974) as long as the existence of the power is real rather

than theoretical. NLRB v. Southern Bleachery and Print

Works, 257 F. 2d 235, 239 (4th Cir. 1958). But the

statute also makes it clear that the exercise of those

powers must require the use of independent judgment and

not be merely routine or clerical. A mere lead man or a

straw boss is not a “supervisor” under the Act. NLRB

v. Bell Aerospace Co., 416 U.S. 267, 279, 283 (1974).

As the Board points out, the legislative history of

§2(11) clarifies the meaning of the independent judg-

ment requirement. Section 2(11) was added by the

Taft-Hartley Act. In enacting that section, Congress was

concerned about the effect of unrestricted unionization

of first-line supervisors. Congress believed that fraternal

union feelings would tend to impair a supervisor's

ability to apply his employer’s policy to subordinates ac-

cording to the employer’s best interests. See NLRB v.

Bell Aerospace Co., 416 U.S. 267 (1974); Beasley v.

Food Fair of North Carolina, 416 U.S. 653, 660 (1974).

It withdrew certain protections from “supervisory” em-

ployees in order to give employers more freedom to pre-

vent a pro-union bias from interfering with the inde-

pendent judgment of employees holding supervisory posi-

tions.

Pilot’s dispatchers must be classified as supervisors if

they actually possessed at least one of the “supervisory”

powers listed in 2 (11) and the exercise of that power

required “independent judgment.” They possessed “in-

dependent judgment” if there was a substantial possi-

bility that fraternal feelings arising from the unioniza-

tion of the dispatchers would interfere with the proper

exercise of the dispatchers’ power.

The evidence in this case was presented to an adminis-

trative law judge. The hearing lasted thirteen days and

produced a two-thousand page transcript. After hearing

the testimony and receiving documentary evidence, the

administrative law judge found that Pilot’s dispatchers

were supervisors and that Pilot had not violated the Act

by questioning them, instituting the supervisory training

program, and issuing job descriptions outlining their

supervisory authority. But the Board rejected the ad-

ministrative law judge’s determination. It found that

Pilot’s dispatchers were employees rather than super-

visors.

We must accept the Board’s finding if it is supported

by substantial evidence on the whole record, Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) even

if we might have resolved the question differently. Bay-

side Enterprises v. NLRB, 45 USLW 4086, (January 11,

1977). Deference to the Board’s finding is especially ap-

propriate here because the case involves

but one specific instance of the “[m]yriad forms

of service relationship, with infinite and subtle vari-

ations in the terms of employment, [which] blanket

the nation’s economy,” and which the Board must

confront on a daily basis.

Id. at 4087.

But neither the General Counsel nor the Board have

directed us to substantial evidence supporting the Board’s

decision. We have examined the lengthy transcript as

well as the material submitted in the joint appendix and

find no substantial evidence to rebut the testimony that

indicates that the dispatchers involved here possessed su-

pervisory authority requiring the use of independent

judgment as defined by § 2(11).

II.

Pilot is an interstate trucking company with terminals

throughout the eastern seaboard. The central termina!

is in Kernersville, North Carolina. During the period in-

volved here* there were three types of dispatchers at the

Kernersville terminal: local dispatchers, line-haul dis-

patchers, and central dispatchers.

(a) Local dispatch was separate from the integrated

central and line-haul dispatch operations. Pilot employ-

ed two local dispatchers who directed the movement of

freight delivered or picked up within a fifty-mile radius

of Kernersville. They worked five days a week between

6 a.m. and 7 or 8 p.m. Pilot’s terminal manager super-

vised the local dispatchers.

When a load was ready for local delivery, the local

dispatcher assigned the load to a local driver, printed the

departure time on the driver’s trip card, and gave the

driver the trip card and other documents before sending

him on his way. During the day the local dispatchers

received requests from customers and salesmen to pick

up freight within the local area. They recorded each re-

quest and instructed drivers by telephone or radio to

make the pickup. When the drivers completed their

2 The dispute here involves the nature of the dispatchers’ duties

during the period from August 1973 through February 1974 for

that is when the acts giving rise to this dispute occurred. Thus,

we will discuss the dispatchers’ duties as they were at that time

and not as they were at the time of the hearing on the charges.

work and returned to the terminal, the local dispatchers

received various documents from the drivers.

The forty-eight local drivers were paid by the hour. A

union contract governed the assignment of the drivers to

loads ready for delivery. The regular bid“ drivers were

the most senior drivers. They bid by seniority for priority

in the right to carry loads destined for certain areas.

“Wild bid” drivers bid for priority in the right to

carry loads departing at certain hours. The “wild

bid” drivers could replace “regular bid” drivers who were

unavailable, or they could serve a regular-bid driver’s

run when the freight to be delivered on that run ex-

ceeded the regular-bid drivers’ capacity. ‘Unassigned

drivers” and “preferential casual’ drivers worked when

none of the “regular bid” or “wild bid” drivers were

available. Assignments from these four groups were made

according to seniority lists. When no drivers from those

groups were available, the local dispatchers resorted to

a list of “casual casual” drivers who have been approved

by the company personnel, safety, and security depart-

ments. When a “casual casual” driver was needed, the

local dispatcher had discretion to choose the “casual

casual” driver he thought could best perform the task.

The local dispatchers had discretion to give pickup as-

signments to the local driver whom they thought could

best perform the task.

In support of the finding that the local dispatchers

were not supervisors during the period under considera-

tion, the Board stated that the assignment of drivers

to loads was thoroughly routinized, that economic con-

sideration governed the local dispatchers’ decisions, and

that the terminal manager was the true supervisor of

the local drivers. But the record does not support the

Board’s findings.

Although a union contract automatically determined

the assignment of drivers in most instances, the local

dispatcher possessed and exercised discretion in the as-

signment of drivers. Local dispatcher, P. O. Church,

a witness for the General Counsel, testified that, on oc-

casion, he had sent drivers into areas and assigned start-

ing times for which they had not bid when he determined

that such assignments were necessary to move freight.

(Tr. 199-200). In opposition to Church’s testimony, the

Board referred us to local dispatcher Merritt’s general

description of how he assigned drivers. Testifying for

the company, Merritt said “It is basically the same thing

every day . . it is just the bids well, the only time it

would change . . . is when you use the wild men.” (Tr.

1133). But Merritt did not really contradict Church

for it is clear that Merritt spoke only in general terms.

Merritt later stated that he might require a driver

to go outside of “his area” to make a pick-up. (Tr.

1138).* Church also stated that he had discretion in

assigning drivers to pick-up freight. (Tr. 137). Al-

though Church indicated that a driver’s equipment af-

fected his decision, it seems clear that where several

drivers had the equipment and space necessary to make

a pick-up, the local dispatcher had discretion to select

the driver for the task.

It is also clear that local dispatchers had discretion to

choose which of the approved casual casual drivers would

actually be given assignments. (Tr. 215-17). Church

said that he selected them according to availability and

location. (Tr. 151). Merritt corroborated Church and

further noted that his evaluation of a driver entered

into his selection. (Tr. 1152-53).

*Even if Merritt’s testimony is interpreted as contradicting

Church’s testimony, the administrative law judge’s resolution of

the credibility of conflicting testimony is entitled to great weight.

Here the administrative law judge apparently believed Church for he

found that the local dispatchers did have the authority to depart

from the bid system in assigning drivers when they determined

that the situation required it. (App. 57).

The Board contends that the local dispatcher’s dis-

cretion in choosing casual casual drivers for assignment

is not relevant because the company was not using casual

casual drivers at the time of the hearing. Pilot responds

that it was not using casual casual drivers at the time

of the hearing because its business had not yet recovered

from the effects of a strike that occurred several months

after this dispute arose. There is no evidence indicating

that at the time involved here, the local dispatcher’s au-

thority to assign casual casual drivers was only theoreti-

cal. Although the dispatcher may not have exercised that

authority at the time of the hearing, they did exercise it

at the time this dispute arose. In any event it is “not

the exercise of authority but the delegation of authority

which is indicative of the attributes of a supervisor.”

NLRB v. Southern Seating Co., 468 F. 2d 1345, 1347 (4

Cir. 1972).

The local dispatcher’s decision regarding the amount

of work assigned to a driver for the day directly affected

a driver because it could determine whether and how

much overtime was allocated to that driver. Both Church

and Merritt agreed on this point. (Tr. 156-57, 1146).

The Board does not point out any evidence to the con-

trary.

Although economic considerations clearly affected the

local dispatcher’s decisions, the record does not show that

economic factors prevented the dispatcher from assigning

drivers according to their individual capabilities. Indeed,

a driver’s ability was a factor involved in the decision as

to whether he would be assigned outside his area and

how many pick-up assignments would be given him.

Nor does the record support the Board’s finding that the

terminal manager rather than the local dispatcher super-

vised the local drivers. Miller, terminal manager at

Kernersville at the time this dispute arose, testified that

he supervised a variety of operations ai the terminal

through various first-line supervisors. Miller said that

he was responsible for the office clerks and the ware-

house clerks both of whom were directed by a Ms. Beach-

am, for the rate billing department which was headed by

a Mr. Hamer, and for the local dispatchers and local

drivers. He specifically said that he did not supervise

the local drivers directly but through the local dispatchers.

(Tr. 1795). It is difficult to believe, as the Board con-

tends, that Miller served as the first-line supervisor of

the 48 local drivers in addition to his other duties.

The Board does not point to any substantial evidence

indicating that the terminal manager was the true first-

line supervisor of the local drivers.‘ The Board refused

to accept the testimony that local dispatchers had the

authority to grant time off to drivers (Tr. 1135-40) and

to determine initially whether a driver was too drunk to

make a run because neither Church nor Merrit could re-

membe a specific incident where they had granted time

off or had determined that a driver was intoxicated and

refused to let him accept an assignment. But, as noted

above, it is the delegation rather than the exercise of

authority which is significant. NLRB v. Southern Seat-

ing Co., 468 F. 2d 1845, 1874 (4 Cir. 1972). The Board

points to no evidence showing that the local dispatchers

lacked such authority or that those decisions were the

terminal manager’s alone. Nor does the Board refer us

to any evidence indicating that the terminal manager

ever saw or spoke to the local drivers on a regular basis.

Although Merritt answered “yes” when asked if the terminal

manager was the immediate supervisor of all the drivers as well as

the local dispatchers, we have no way of knowing what Merritt

understood the term “immediate supervisor” to mean. In view of

Merritt’s assertion that he had the authority to discipline drivers

(Tr. 1141), grant time off (Tr. 1138-40) and vary assignments

from that set by the bid system, his apparent admission that the

terminal manager was the immediate supervisor of the local drivers

is not substantial evidence that the terminal manager was in

fact the first-line supervisor.

10a

The Board has not shown that there is substantial evi-

dence to contradict the evidence that the local dispatchers

had the authority to assign local drivers to different areas

and different times than those for which they had bid,

decide the amount of pick-up work given to a driver,

select casual casual drivers, and generally act as the

first-line supervisor of the local drivers. It is clear that

the local dispatchers had the authority “responsibly to

direct” the local drivers. There is a substantial possi-

bility that the fraternal feelings engendered by union

membership would threaten the ability of a local dis-

patcher with such responsibilities to exercise his au-

thority in his company’s best interest. Therefore we find

that the Board’s determination that the local dispatchers

were employees rather than supervisors was not supported

by substantial evidence.

(b) Line-haul dispatchers were responsible for dis-

patching drivers and freight to terminals and customers

beyond a 50-mile radius from Kernersville. The line-

haul dispatch operation never closed. One line-haul dis-

patcher and one dispatch clerk was on duty at all times.“

A union contract required that “over-the-road” drivers

be assigned to loads on a first-in, first-out basis. The

company had to pay a penalty when it departed from the

method of assignment set forth in the union contract.

Line-haul dispatchers were supervised by a supervisor of

road dispatch.

The Board reversed the administrative law judge’s

finding that the line-haul dispatchers were supervisors

because it found that the line-haul dispatchers’ primary

concern was to move equipment quickly and economically,

that the line-haul dispatchers’ decisions regarding drivers

5 Dispatch clerks were originally part of this dispute, but the

parties stipulated that. dispatch clerks were “employees” because

unlike the dispatchers, the clerks received hourly wages, punched

a time clock, and did not participate in the company bonus plan.

lla

were governed by explicit company policies and union con-

tract provisions, and that driver supervisors, who were on

duty 24 hours a day, actually supervised the over-the-

road drivers. But the record does not support the Board’s

position.

Although the assignment of drivers was often a routine

process governed by the union contract, there was testi-

mony that the line-haul dispatchers sometimes had dis-

cretion in applying the first-in, first-out system and that

the company permitted the dispatchers to depart from

the contract assignment system and use their own discre-

tion in assigning drivers under certain circumstances.

The Board does not show any substantial evidence contra-

dicting that testimony.

The General Counsel’s own witness, line-haul dis-

patchers, Grady Kiser, testified that even under the

union contract, he had discretion to select drivers when

two loads of a similar category were to depart simul-

taneously and when many loads departed in a short period

of time. Kiser also admitted that he did select particular

drivers for certain loads. (Tr. 513-14).

Lonnie Booe, ti supervisor of the line-haul dispatchers,

testified that the line-haul dispatchers often intentionally

departed from the assignment order mandated by the

union contract and “ran around” one driver for another.

He indicated that the benefit of the superior service or

availability of some drivers was worth the penalty for

violating the contract.

The Board does not show any evidence contradicting

Kiser’s statement. But it does attempt to show that line-

haul dispatchers had no discretion to deliberately vio-

late the union contract and “run around” a driver. The

Board points to Driver Supervisor Wade Seal’s testimony

that a dispatcher was not doing his job right when he

deliberately ran around a driver (Tr. 1414(2)) and the

12a

portion of Booe’s testimony where Booe obviously wished

to avoid stating that the company had a policy of per-

mitting deliberate run-arounds. (Tr. 1344). The evi-

dence, however, clearly shows that the company con-

doned, and perhaps encouraged, run arounds where the

dispatchers felt that the benefits outweighed the penalty

under the contract. Seal did not assert that company

policy prohibited run arounds. He admitted that the

practice continued even though he had complained to the

dispatchers and the dispatchers’ supervisor and that no

one had been fired for making deliberate run arounds.

(Tr. 1414(2)-(4)). Although reluctant to state that there

was a policy permitting deliberate run-arounds, Booe

clearly stated that the company condoned them (Tr.

1345) and defended the practice as the only way to get

the loads moved under some circumstances. (Tr. 1302-

04, 1344-45).

As additional support for our finding here, we note

that the Regional Director of Region 12 has found that

Pilot’s line-haul dispatchers in Florida have “authority to

deviate from the contract terms if they decide that a

driver is not qualified or it would be faster and more

efficient to dispatch on another basis.” Pilot Freight

Carriers, Inc. and Truck Drivers, Warehousemen and

Helpers Local Union 512, No. 12-RC-5204 (November

22, 1976). The Board has refused to review the Director’s

decision. The Regional Director noted that Pilot’s Florida

terminal was different from the Kernersville terminal be-

cause driver supervisors were on duty at all times at

Kernersville and not in Florida. But the Board has not

directed us to any evidence that the driver supervisors

at Kernersville had anything to do with the dispatchers’

authority to depart from the contractual assignment pro-

cedure and incur penalties when they found it expedient

to do so.

There was also substantial testimony that the line-

haul dispatchers had discretion to decide whether a

13a

driver who arrived late should be permitted to take his

load or should be sent to the driver supervisor. Grady

Kiser, a line-haul dispatcher testifying for the General

Counsel, testified that when a driver arrived 30 or 45

minutes late, the dispatcher had to decide whether the

driver had been so unreasonably late that he should be

sent to the driver supervisor. Kiser also said that the

dispatcher was the only one who determined initially

whether a driver had been unreasonably late (Tr. 525-

27) and that he, Kiser, had permitted drivers to report

late and switch loads with another driver in order to

avoid missing a load. (Tr. 527-28).

The Board argues that the dispatcher exercised no

independent judgment in handling drivers who reported

late. It asserts that the dispatcher routinely permitted

a 30-minute grace period for some priority loads and

that the dispatcher was required to send a driver to the

supervisor if the driver were more than a half hour late.

(NLRB brief p 23 n.33). But it is clear that the Board

has misconstrued Kiser’s testimony. The portions of the

transcript upon which the Board relies show that there

was no firm requirement regarding a 30-minute grace

period. Although Kiser insisted that the driver super-

visor rather than the dispatchers decided how to dis-

cipline a late driver, Kiser made it very clear that only

the dispatchers had the discretion to determine whether

drivers would be referred to the supervisor and that

there was no penalty for reporting late unless the dis-

patcher forced a driver to see the supervisor. (Tr. 408-10,

527-28). Thus there is no substantial evidence support-

ing the Board’s finding that the line-haul dispatcher had

no discretion in handling late drivers.

Finally there was substantial testimony that the line-

haul dispatcher had the responsibility to determine

whether a driver was intoxicated and should be sent to

the driver supervisor on charges of reporting for work

l4a

in an intoxicated condition. (Tr. 411, 1297). The Board

contends that there is no supervisory responsibility in-

volved in reporting drunk drivers because company policy

and government regulations prohibit the company from

allowing an intoxicated driver to depart. But the record

clearly shows that the company relied on the dispatcher

to detect and report intoxicated drivers. The dispatcher

had to decide whether a driver’s condition required that

he be sent to the supervisor. Although the dispatcher

merely forces a driver to go to the supervisor,’ that in

itself is a form of discipline.

When this dispute arose, the company depended upon

the line-haul dispatchers to prevent inebriated drivers

from going out on the road, to ensure that drivers were

not allowed to be unreasonably late in reporting for

©The Senate implicitly rejected an argument similar to that

made by the Board regarding the driver supervisors being the

only true supervisors of these drivers when it added the words “or

responsibly direct them” to the definition of employer in § 2(11).

In proposing the amendment Senator Flanders said

Many of the activities described in paragraph (11) are trans-

ferred in modern practice to a personnel manager or department.

In fact, under some modern management methods, the super-

visor might be deprived of authority for most of the functions

enumerated and still have a large responsibility for the exercise

of personal judgment based on personal experience, training,

and ability. He is charged with the responsible direction of his

department and the men under him. He determines under gen-

eral orders what job shall be undertaken next and who shall do

it. He gives instructions for its proper performance. If needed,

he gives training in the performance of unfamiliar tasks to the

worker to whom they are assigned.

Such men are above, the grade of “straw bosses, lead men, set-

up men, and other minor supervisory employees”. .. . Their

essential managerial duties are best defined by the words,

“direct responsibly,” which I am suggesting.

In a large measure, the success or failure of a manufacturing

business depends on the judgment and initiative of these men. 2

Legislative History of the Labor Management Relations Act of

1947 1303 (1947)

15a

duty, and to “run around” a driver or permit a driver

to switch loads if necessary to meet the company’s ob-

ligation to deliver freight on time.

It is clear that the line-haul dispatchers possessed

the authority “responsibly to direct” the drivers as well

as some of the other supervisory authorities listed in

§ 2(11). Undivided loyalty from its line-haul dispatchers

in the exercise of their discretion was essential to the

company. The record does not support the Board’s find-

ing that these dispatchers were “employees” rather than

supervisors.

(e) Central dispatchers were responsible for moving

freight in a manner which would maximize profits. Two

were on duty at all times. They were supervised by a

director of central dispatch.

The central dispatchers assigned departure times to

most loads leaving Kernersville and also to loads leav-

ing other terminals when they were closed at night or on

weekends. They communicated with all of Pilot’s termi-

nals by teletype and telephone. One of their major func-

tions was to keep track of each trailer and to monitor

the conditions at each of Pilot’s forty-one terminals at

all times. Another function of the central dispatchers

was to receive all communications from drivers once

they were on the road.

The Board rejected the administrative law judge’s

conclusion that the central dispatchers were “super-

visors” because it found that the central dispatchers

merely exerted direction and control over the movement

of equipment and that their direction of personnel was

only an incidental part of their direction of equipment.

The Board’s opinion admits that central dispatchers de-

cided which load was the first to leave a terminal that

had been closed for the night, whether to overrun a

terminal by sending in more drivers than were needed to

16a

carry away the outgoing freight, and other things that

admittedly could increase or decrease a driver’s pay.

Yet it states that those decisions involved the weighing

of economic factors rather than any real employee super-

vision. Furthermore, the Board found that well-defined

company policies deprived the central dispatchers of any

real discretion in the instructions which they gave to

drivers and that the driver supervisors were the true

supervisors of the over-the-road drivers.

But the record indicates that the Board failed to

recognize the supervisory function performed by the cen-

tral dispatchers in deciding whether to permit drivers

to stop driving early or vary his route for personal rea-

sons. There is substantial testimony that the central

dispatcher had discretion to grant or deny a driver’s re-

quest to stop driving early or detour from his route for

personal reasons. (Tr. 834-37, 839-41, 935-37, 1739-40).

The Board contends that the company had a specific

policy of permitting drivers to stop early if the company

lost no more than one hour of driving time and the

driver saved the company the cost of a motel room by

staying with relatives. (NLRB brief at 30). But the

Board misconstrues the testimony upon which it relies.

The testimony cited in the Board’s brief shows that cen-

tral dispatchers considered several factors including their

personal evaluation of a driver in handling such a re-

quest. It does not show any clear company policy which

deprived the central dispatchers of discretion.

The Board also argues that the driver supervisors have

preempted any supervisory authority that the central dis-

patchers may have had regarding request [sic] for time

off or route variation. (NLRB reply brief, p. 6). Dut

again the Board misconstrues the testimony upon which

it relies. The testimony cited by the Board does not show

that driver supervisors alone controlled the decision to

grant time off for personal reasons once the supervisors

17a

began to be on duty 24 hours a day. It shows that the

central dispatchers were familiar with some drivers,

handled some requests for time off without consulting a

driver supervisor, and played a major part in the de

cision to grant time off for personal reasons even when

a supervisor was consulted. (Tr. 957, 1394-96). Al-

though it seems that the central dispatchers may have

abused their authority by letting too many drivers have

time off to visit the dog tracks in Florida and that the

company had to give the driver supervisors more control

over time-off requests from drivers in that area, the

Board has not pointed to any testimony stating that the

driver supervisors alone decided whether to grant re-

quests for time off or route variances for personal rea-

sons.’

The portions of the record noted in the Board’s briefs

indicate that the company relied upon the central dis-

patchers to determine when requests for time off could

be granted and that the dispatchers were aware of the

effect of their decision upon the driver. It is clear that

there was a substantial possibility that a fraternal union

relationship between central dispatchers and drivers could

have impaired the dispatchers’ ability to make their de-

cisions in the company’s best interests. Thus, we find

that the Board’s conclusion that the central dispatchers

were “employees” rather than “supervisors” is not sup-

ported by substantial evidence.

Our finding that the Board erred in classifying the

dispatchers as “employees” rather than “supervisors” *

7 See note 6 on page 18 supra.

We note that our decision here is in accord with the decisions

of other circuits rejecting, although in different factual contexts, the

Board’s attempts to treat dispatchers as “employees” under the

National Labor Relations Act. See NLRB v. Metropolitan Petroleum

Co., 506 F.2d 616 (1st Cir. 1974); NLRB v. Gray Line Tours, Inc.,

461 F.2d 763, 764 (9th Cir. 1972); Pacific Intermountain Express

Co. v. NLRB, 412 F.2d 1, 2-4 (10th Cir. 1969) ; Eastern Greyhound

Lines v. NLRB, 337 F.2d 84 (6th Cir. 1964).

18a

disposes of the 8(a)(1), (3) and (5) charges regard-

ing the dispatchers. Since the dispatchers were already

supervisors when the company issued the job descriptions

and initiated the training program, the company did not

violate the Act by altering the dispatchers’ duties with-

out consulting the union and cannot be accused of at-

tempting to deprive the dispatchers of their rights by

unilaterally changing the dispatchers into “supervisors.”

In view of the supervisory status of the dispatchers, the

company was also free to talk with them about their

union activities.

Although the company’s director of central dispatch

took dispatch clerk Oscar Hill into his office and spoke

with him concerning the union, that conversation is the

only one that could be violative of the Act. In view

of the absence of any other violation on the part of the

company, the conversation with Hill becomes an isolated

incident which does not require the entry of a formal

cease and desist order even though Hill was an “em-

ployee” and was protected by the Act from coercive in-

terrogation regarding his union activities.

Therefore we decline to enforce the Board’s order.

ENFORCEMENT DENIED.

19a

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

June 29, 1977

TO: Elliott Moore, Esq.

Paul Spielberg, Esq.

Andrew Tranovich, Esq.

Angelo V. Arcadipane, Esq.

Robert M. Baptiste, Esq.

Gary S. Witlen, [sic] Esq.

J. W. Alexander, Jr., Esq.

John O. Pollard, Esq.

CLERK’S MEMORANDUM

In compliance with Rules 36 and 45(c) of the Federal

Rules of Appellate Procedure, you are advised that the

judgment in case No. 76-1089 was entered this date.

A copy of the court’s opinion, and a blank bill of costs

(omitted in criminal cases) is enclosed.

I would invite your particular attention to Rules 39

(c), 40(a), and 41(b) of the Federal Rules of Ap-

pellate Procedure.

Please be advised that the policy of this court re-

quires that petitions for rehearing, regardless whether

the case was fee paid or in forma pauperis, be filed in

fifteen copies.

Where it has been determined that a stay of the

mandate is an appropriate course of action, then an

original petition only (no copies) to stay the mandate

need be filed.

WILLIAM K. SLATE, II

Clerk

20a

APPENDIX B

PILOT FREIGHT CARRIERS, INC. and CHAUFFEURS, TEAM-

STERS and HELPERS LOCAL UNION No. 391, affiliated

with INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN and HELPERS OF

AMERICA.

Cases 11-CA-5506, 11-CA-5642, and 11-CA-5718

December 5, 1975

DECISION AND ORDER

By MEMBERS FANNING, JENKINS, AND PENELLO

On March 28, 1975, Administrative Law Judge Ben-

jamin K. Blackburn issued the attached Decision in this

proceeding. Thereafter, the General Counsel filed excep-

tions and a supporting brief, and the Respondent filed

cross-exceptions and a brief in support of the Administra-

tive Law Judge’s Decision.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has de-

cided to affirm the rulings, findings, and conclusions of

the Administrative Law Judge only to the extent con-

sistent herewith.

The complaint alleges that pursuant to a settlement

agreement executed by the parties in August 1973 the

Union has been the collective-bargaining agent for the

Respondent’s central, line-haul, and local dispatchers as

part of an office clerical unit; that in response to the con-

certed activities of these dispatchers Respondent in vio-

21a

lation of Section 8 (a) (3) issued job descriptions and

instituted a supervisory training program in an attempt

to convert these dispatchers into supervisors within the

meaning of Section 2 (11) of the Act; and that these ac-

tions, taken without the benefit of bargaining with the

Union, were in violation of Section 8 (a) (5). The com-

plaint further alleges that Respondent committed certain

independent violations of Section 8 (a) (1) to discourage

the union activity of these dispatchers.

The Administrative Law Judge found that the dis-

patchers exereised independent judgment in responsibly

directing drivers and thus were supervisors even before

Respondent allegedly converted them to that status. He

also found that, even if mistaken about the supervisory

status of the dispatchers, Respondent’s conduct was not in

violation of Section 8 (a) (3) or (5). In his view, the

settlement stipulation which the General Counsel relies

upon left in question the employee status of these dis-

patchers and, until the question of their status was re-

solved, Respondent had no obligation to bargain. The Ad-

ministrative Law Judge rejected the contention that Re-

spondent’s alleged conversion of dispatchers into super-

visors was inherently destructive of their Section 7 rights

or that Respondent had the burden of explaining its

conduct. He found that, even if the Respondent’s conduct

was as alleged, Respondent had proven that it was moti-

vated by the good-faith belief that the dispatchers had

always been supervisors and its issuance of job de-

scriptions and initiation of a training program were not

meant to interfere with Section 7 rights. The Administra-

tive Law Judge also dismissed the independent violations

of Section 8(a) (1) since the allegations were essentially

grounded on conduct affecting individuals he found to be

supervisors.

We note at the outset the Administrative Law Judge’s

discussion of the lack of credibility issues in this case.

22a

He believed that witnesses for the Respondent and for

the General Counsel testified truthfully about their duties

and supervisory functions, and whether or not they had

been told that they had supervisory authority. Thus, the

real problem was one of drawing conclusions from

lengthy testimony. Some dispatchers were told they had

supervisory authority; some were not so told. Some testi-

fied that they used discretion in putting a “better” driver

on a load; others that this was taken care of by applying

the first-in, first-out provision of the union contract, and

so on. From this testimony the Administrative Law

Judge concluded that the day-to-day dispatcher job added

up to the use of independent responsible direction of the

various drivers. We reach a contrary conclusion after

analyzing the testimony and the contentions of the

parties.

To us it appears that actual supervision of over-the-

road drivers who work in and out of this busy Kerners-

ville terminal—a main break-bulk terminal for the East

Coast, except Florida—is provided by driver supervisors,

one of whom is always on duty at Kernersville. Their

function is to assist the director of driver personnel in

supervising over-the-road drivers. They check the in-

coming trip cards of drivers, examine tachographs, and

handle reprimands and grievances. Tachographs, among

other items, will reflect whether a driver has deviated

from his orders. By contrast, the function of central dis-

patchers is to move the freight and equipment in the

most expeditious and lucrative manner for the Re

spondent, a function carried out pursuant to estab-

lished guidelines and with constant reference to charts

that line the walls of the central dispatch room and

show the location of equipment and driver availability.’

1 Respondent has issued a comprehensive manual detailing what

procedures are to be followed for dispatching the equipment and for

providing a driver with any necessary instructions. Additional

guidelines not set out in the manual are issued in the form of

23a

Two central dispatchers are on duty at all times, one

for north traffic and one for south traffic. Drivers are

told to contact them if delayed. The major worktime

of central dispatchers is devoted to telephone communica-

tions with other terminals and with drivers. Among the

decisions made by central dispatchers are which load to

pull first out of a terminal closed for the night, whether to

overrun a terminal and miss certain loads, and whether to

permit a terminal to rent equipment. Central dispatchers

are themselves supervised by a director of central dis-

patch, one of whose functions is to issue written direc-

tives, for example:

Advances are to be issued only to pay fines or in

extreme emergencies, or if a driver has been out

several days and is staying out and needs money for

tolls, ete. All other requests are to be referred to the

driver supervisor on duty. (Emphasis supplied. ]

We cannot agree that central dispatchers “sti!] use in-

dependent judgment” in applying such a directive. Sim-

ilarly, authorization of a driver to break a seal on a

trailer when the load has shifted, or to hire casual help

to unload, is pursuant to well defined company policies.

Department of Transportation regulations obviously pro-

hibit assignment or continued driving by those who are in-

toxicated or ill, and require rest periods for over-the-road

drivers at set intervals. The fact that directions in the

interest of expediting frieght may affect a driver’s pay—

up or down—is not in itself indicative of the exercise of

supervision within the meaning of the Act. As the Ad-

ministrative Law Judge has stated, a central dispatcher

“weighs the economics” in giving his directions. In our

view these central dispatchers are, like the radio dis-

patchers in The Baltimore Transit Company and The Bal-

memoranda that usually relate to a specific subject. The collective-

bargaining contracts and the Department of Transportation’s motor

safety regulations are additional guideposts that must be followed.

24a

timore Coach Company, 192 NLRB 1260 (1951), merely

exerting direction and control over the movement of equip-

ment, and the direction of personnel by them occurs only

as an incidental result, hence they are not supervisors

within the meaning of Section 2(11) of the Act.’

At the time of hearing there were three line-haul dis-

patchers at Kernersville with primary responsibility for

coordinating with the warehouse the hooking of trailers

to tractors, calling in over-the-road drivers to take the

loads, punching them out when the equipment is ready,

and supplying them with a manifest, bills for the frieght,

and a trip ticket. The latter may include special in-

structions for transporting or delivering. In the opera-

tion there are also four dispatch clerks who man the

phone and the typewriter and work as a team with the

dispatchers. This office works round the clock and one

dispatcher and one clerk are on duty at the same time.

The Administrative Law Judge has described this re-

lationship graphically as a journeyman-helper situation

but nonetheless found, as urged by the Respondent, that

the line-haul dispatchers supervised the dispatch clerks

after the revised job descriptions were issued.* Dispatch

clerks, as the parties agree, are within the unit. When a

driver arrives with freight, the dispatcher or the clerk

(if he happens to be “manning the window”) marks the

time of arrival and the driver then turns the trip card

over to the driver supervisor.

When a driver who has been called to take a load does

not show up on time, a dispatcher may give the trip to

the next available man, thus automatically putting the

2 Spector Freight System, Inc., 216 NLRB No. 89 (1975).

’ Contrary to the Administrative Law Judge, we find that the

dispatchers do not supervise clerks. His finding is based on a single

discharge, but, as we read the record, the dispatcher did not do

the firing and, as the Administrative Law Judge admits, the incident

was arguably staged.

25a

first driver at the bottom of the list. On occasion, if the

list of regular drivers is exhausted, the dispatcher may

assign a casual driver, or may even request that an incom-

ing driver “turn on the yard” and go out again imme-

diately with a new load. In performing these duties the

line-haul dispatcher’s overriding interest and concern—

like that of the central dispatcher in his work—is the

movement of equipment in the fastest, most economical

way possible. The incidental impact this may have on

drivers is not in our opinion the exercise of supervision

within the meaning of the Act. Significantly, these

dispatchers are themselves supervised by the director of

line-haul dispatch.

We come now to the dispatch of local freight within a

50-mile radius. For this operation there are two local

dispatchers who are supervised by the terminal manager.

The latter has no responsibility with respect to central

or line-haul dispatch. Local dispatch is a 5-day-a-week

operation, with one dispatcher arriving about 6 a.m.

and the other leaving between 7 and 8 p.m. Each

year local drivers bid, by seniority, for local runs. Those

with less seniority bid for hours. There are also preferen-

tial casual drivers who come under the contract and are

called by seniority, and casuals who have no seniority

—4 are on a roster and are paid the specified contract

rate.

The local dispatchers punch out local drivers, who

keep in touch with the terminal during the day for

instructions on additional pickups and problems that

may arise. Despite the fact that the record shows that

the assignment of drivers to loads is thoroughly rou-

tinized, the Administrative Law Judge found the exer-

cise of independent judgment by local dispatchers based

on authorizing overtime pay when a pickup is delayed

for some reason or not available at the time estimated

by the local dispatcher; requesting that the driver

change his lunchtime from that provided by the contract

26a

or agreeing to that arrangement if the driver has a

personal errand; authorizing the hire of casual labor to

unload; and approving or disapproving the delivery of

a c.o.d. without payment. In our view, such decisions

are essentially dictated by economic considerations, for

which the Employer has provided comprehensive dis-

patching procedures. Although there is no personnel

termed a driver supervisor for the local drivers, we con-

clude that the terminal manager has authority to hire,

discharge, and discipline local drivers and to direct them

to the extent not covered by company procedures.

Accordingly, we see nothing in this record to support

a finding that local dispatchers are supervisors within

the meaning of the Act.

Unfair Labor Practices

We have found that Respondent’s dispatchers are em-

ployees rather than supervisors, and entitled to the pro-

tection of the Act.“ The question then concerns the al-

leged 8(a)(1) interference with Section 7 rights and

8 (a) (3) discriminatory effect of the 1973 job descrip-

tions which on their face imply supervisory authority,

and of the 1974 initiation of supervisory training meet-

ings for dispatchers, as well as the 8 (a) (5) impact of

unilaterally taking such steps without consulting the

recognized bargaining representative.

In August 1973 the Union and the Respondent entered

into a settlement stipulation of several outstanding un-

fair labor practice proceedings, wherein the parties

Based upon the evidence that Respondent’s dispatchers do not

formulate, determine, and effectuate Respondent’s business policy

and that their decisions conform to established operating guide-

lines, we find that the dispatchers are not excluded from the pro-

tection of the Act as managerial employees. N.L.R.B. v. Bell Aero-

space Company, Division of Textron, Inc., 416 U.S. 267 (1974).

See also Spector Freight System, Inc., 216 NLRB No. 89 (1975).

27a

agreed to a “final and binding card check” to “resolve

the representation issues,” except that Respondent re-

served the right to litigate the employee status of dis-

patchers in a unit clarification proceeding before this

Board. Several days after the card check, which showed

as to dispatchers that 14 of the 19 had chosen to be rep-

resented by the Union, Respondent filed a unit clarifica-

tion petition in an effort to resolve the status of the dis-

patchers. However, in September Respondent issued the

disputed job descriptions covering dispatchers which, in

our view and that of the Administrative Law Judge, out-

lined supervisory duties. Later, in February 1974, Re-

spondent, also as found by the Administrative Law

Judge, instituted a supervisory training program for

dispatchers. Respondent’s actions, following closely a

demonstrated majority of dispatchers in favor of union

representation and before resolution of the supervisory

issue, were, we find, interference, restraint, and coercion

with respect to employee protected activity in violation

of Section 8(a)(1), as well as discrimination to dis-

courage union activity in violation of Section 8(a) (3).

Contrary to the Administrative Law Judge, we find it

immaterial that Respondent had, in taking these steps,

a good-faith belief that its dispatchers were already su-

pervisors within the meaning of Section 2(11) of the

Act.“

In reaching this conelusion we note that these job

descriptions, while purporting to reflect supervisory re-

sponsibilities, do not accurately reflect the job functions

performed either at the time they were distributed or

at the time of hearing. Except as to the three line-haul

dispatchers, there is no background of issuing job de-

scriptions for dispatchers, and the timing of these and

of the supervisory training program pending a deter-

See N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34

(1967).

28a

mination of the supervisory issue—a period when the

requisite preservation of the status quo would have been

especially desirable to promote a prompt resolution of the

issue unclouded by what we view as attempts to influence

the result—is not explained by this record on the as-

serted ground that Respondent was simply codifying the

supervisory authority already possessed by its dispatchers.

With respect to the refusal-to-bargain allegation, we

find, contrary to the Administrative Law Judge, that

Respondent, having reserved the right to litigate the

status of dispatchers as supervisors, had an obligation

to consult with the Union that did not hinge upon resolu-

tion of the issue. While resolution of the supervisory

issue was pending, it acted at its peril in not consulting

the Union concerning the issuance of the job descriptions

and the supervisory training program. Accordingly, we

find that the Respondent violated Section 8(a) (5) of the

Act.“

The General Counsel urges the Board to make findings

of 8 (a) (1) and (3) violations without regard to the

existence of an unlawful motive. While we agree that

the acts of Respondent taken during the period when

the supervisory issue was unresolved were inherently

destructive of the important employee right under Sec-

tion 7 to be represented for bargaining with fellow em-

ployees unless determined, by unit clarification, to be

supervisors, and that an 8 (a) (3) finding here may also

be appropriate without specific evidence of union animus,

we note that this is not a case where that antiunion

motivation is lacking. On four occasions in April 1974,

the Respondent through its director of central dispatch

6 In this connection see Mike O’Connor Chevrolet-Buick-GMC Co.,

Inc., and Pat O Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB

701, 703 (1974), concerning the peri! of making postelection changes

in working conditions, absent compelling economic considerations

for doing so, during pendency of objections.

29a

urged its employees to “forget about the Union” and

to withdraw their support from it, as the Administra-

tive Law Judge found based upon uncontroverted testi-

mony. Two occasions involved central dispatchers, one

a line-haul dispatcher, and one a dispatch clerk. The

Administrative Law Judge treated the latter incident

as isolated, and found no violation as to the conversa-

tions with dispatchers because of their supervisory status.

As we have concluded that all dispatchers are employees,

we find these conversations to be independent violations

of Section 8 (a) (1) which supply explicit evidence of the

discriminatory purpose underlying the issuance of job

descriptions and the institution of the training program

which constitute the 8 (a) (3) violations we have found.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board hereby orders that the Respondent, Pilot Freight

Carriers, Inc., Kernersville, North Carolina, its officers,

agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Coercively interrogating employees concerning

their activities in support of a labor organization.

(b) Coercively interrogating employees concerning

their involvement in a labor dispute.

because of their activities in support of a labor organi-

zation.

(d) Unlawfully requesting or directing employees to

withdraw their union authorization cards.

(e) Unlawfully requesting or directing employees to

abandon the Union and to deal directly with Respond-

ent.

(f) Unilaterally issuing job descriptions or instituting

supervisory training for dispatchers.

(g) Attempting to change the duties and responsi-

bilities of its employees because said employees joined or

assisted the Union or engaged in other activities pro-

tected by Section 7 of the National Labor Relations Act,

as amended.

(h) Refusing to bargain collectively concerning the

inclusion of dispatchers in the unit covered by the termi-

nal office employees contract with Chauffeurs, Teamsters

and Helpers Local Union No. 391, affiliated with Interna-

tional Brotherhood of Teamsters, Chauffeurs, Warehouse-

men and Helpers of America, as the exclusive representa-

tive in the following collective-bargaining unit:

All terminal office employees and maintenance of-

fice employees employed by Respondent at its Ker-

nersville, North Carolina, terminal, including dis-

patchers but excluding log clerks, guards, salesmen,

confidential, managerial, and supervisory employees.

(i) In any other manner interfering with, restraining,

or coercing its employees in the exercise of their rights

to self-organization, to form labor organizations, to join

or assist Chauffeurs, Teamsters, and Helpers Local Union

No. 391, affiliated with International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, or any other right guaranteed them under Sec-

tion 7 of the Act.

2. Take the following affirmative action which the

Board finds will effectuate the purposes and policies of

the Act:

(a) Rescind the 1973 job descriptions and 1974 train-

ing program as they apply to dispatchers.

(b) Upon request, bargaining with the above-named

labor organization for the inclusion of dispatchers in the

unit covered by the terminal office employees contract.

(e) Post at its place of business in Kernersville, North

Carolina, copies of the attached notice marked “Appen-

dix.“ Copies of said notice, on forms provided by the

Regional Director for Region 11, after being duly signed

by Respondent’s representative, shall be posted by Re

spondent immediately pon receipt thereof, and be main-

tained by it for 60 consecutive days thereafter, in con-

spicuous 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 11, in

writing, within 20 days from the date of this Order,

what steps have been taken to comply herewith.

In the event that this Order is enforced by a Judgment of a

United States Court of Appeais, 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

32a

APPENDIX

Norick TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all sides had the opportunity

to present their evidence, the National Labor Relations

Board has found that we violated the National Labor

Relations Act, and has ordered us to post this notice and

we intend to carry out the Order of the Board.

The Act gives all employees these rights:

To engage in self-organization

To form, join, or help unions

To bargain collectively through a representative

of their own choosing

To act together for collective bargaining or other

mutual aid or protection

To refrain from any and all these things.

WE WILL Nor do anything that interferes with these

rights.

WE WILL NOT coercively interrogate you regarding

your union membership, activities, or desires, or your

involvement in a labor dispute.

WE WILL NOT threaten to fire or take any action

against any of you because you have joined or sup-

ported, support, or will support a labor organization

of your choice, including Chauffeurs, Teamsters and

Helpers Local Union No. 391, affiliated with Interna-

tional Brotherhood of Teamsters, Chauffeurs, Warehouse-

men and Helpers of America.

WE WILL NOT request and direct employees to with-

draw their union authorization cards.

33a

WE WILL NOT request and direct employees to abandon

the Union and deal directly with management.

WE WILL NOT issue job descriptions or institute super-

visory training programs for dispatchers without first

2 with your collective-bargaining representa-

ive.

WE WILL NOT in any other manner interfere with, re-

strain, or coerce our employees in the exercise of their

right to self-organization, to form, join, or assist any

labor organization, to bargain collectively through rep-

resentatives of their own choosing, or to engage in con-

certed activities for the purpose of collective bargaining

or other mutual aid, or to refrain from any or all such

activities.

WE WILL rescind the 1973 job descriptions and 1974

training program as they apply to dispatchers.

WE WILL, upon request, bargain for the inclusion of

the dispatchers in the contract unit.

You and all our employees are free to become mem-

bers of any labor organization, or to refrain from doing

80.

PILOT FREIGHT

CARRIERS, INC.

34a

DECISION

STATEMENT OF THE CASE

BENJAMIN K. BLACKBURN, Administrative Law Judge:

The charge in Case 11-CA-5506 was filed on October

4, 1973. The charge in Case 11-CA-5642 was filed on

February 27, 1974. The cases were consolidated for

hearing and a consolidated complaint was issued on

April 22, 1974. The charge in Case 11-CA-5718 was

filed on April 29, 1974. All three cases were consolidated

for hearing and an amended consolidated complaint was

issued on May 30, 1974. The hearing was held in

Greensboro, North Carolina, on June 27 and November

6, 7, 8, 9, 11, 12, 18, 14, 18, 19, 20, and 21, 1974. The

principal issue litigated was whether dispatchers em-

ployed at Respondent’s terminal at Kernersville, North

Carolina, were as of August 24, 1973, employees or su-

pervisors within the meaning of Section 2(11) of the

National Labor Relations Act, as amended. For the rea-

sons set forth below, I find that they were supervisors

and that, therefore, Respondent did not violate Section

8(a)(1), (3), and (5) of the Act by issuing job de-

scriptions on September 26, 1973, which explicitly set

forth their supervisory authority and responsibilities and

by instituting a supervisory training program for them

in February 1974.

On the entire record, including my observation of the

demeanor of the witnesses, and after due consideration

of briefs, I make the following:

FINDINGS OF FACT

I. JURISDICTION

Respondent, a North Carolina corporation, is engaged

in various States in the interstate motor transportation

of freight pursuant to a license granted by the Inter-

state Commerce Commission. During the 12 months im-

mediately preceding issuance of the amended consolidated

complaint in this proceeding, Respondent grossed more

than $500,000 and received shipments of goods valued

in excess of $500,000 at its Kernersville, North Carolina,

—— directly from points outside the State of North

arolina.

II. THE ALLEGED UNFAIR LABOR PRACTICES

A. The Due-Process Issues

1. How they arose

Respondent’s drivers, both over-the-road and local, are

represented by the Teamsters. At the Kernersville termi-

nal the contract is between Respondent and Teamsters

Local 391. In the spring of 1973 Local 391 undertook

to organize other employees at the Kernersville termi-

nal. In its initial contact with Respondent about the

matter in mid-May, the Union asked for a unit of termi-

nal office employees. In late June, when serious discus-

sions began, the Union first mentioned that it wanted

to include dispatchers. When telephone communications

in early July failed to elicit a response from Respond-

ent as to whether it would grant recognition to Local

391, the Union sent a formal demand letter. This led

to a meeting on July 9, 1973, at which Respondent took

the position that dispatchers were managers or super-

visors within the meaning of the Act. On July 13

terminal office employees staged a 1-day strike in sup-

port of their demand that Respondent recognize Local

391 as their bargaining representative. Dispatchers did

not participate in the strike. The strike resulted in a

spate of litigation, including a charge and a petition

filed with the Board’s regional office in Winston-Salem

and an injunction proceeding filed in United States Dis-

36a

trict Court. When the latter came to trial on August 24,

1973, Respondent and the Union settled their dispute on

the courthouse steps. A document entitled “Settlement

Stipulation” which they executed that day provided for

a card check to be conducted by a named arbitrator to

determine whether Local 391 represented a majority of

office employees at the Kernersville terminal. It also pro-

vided that the arbitrator would resolve “all issues which

may arise in the above mentioned card check,” save only

the question of whether dispatchers “are supervisors or

managerial employees within the meaning of the National

Labor Relations Act.” As to that issue the right was

reserved to Respondent to have it resolved in a Board

unit clarification proceeding. The last two paragraphs

of the stipulation read:

7. The Employer and Union agree to withdraw with

prejudice all litigation, charges and petitions, in-

cluding litigation against the International Brother-

hoed of Teamsters, arising out of this controversy,

specifically United States District Court No. C-

228-WS-73 and NLRB Cases 11-CA-5394 and 11-

RM-201. Thereafter neither the Employer nor the

Union shall file any litigation, charges or petitions

in the courts or before the National Labor Rela-

tions Board encompassing any part of the contro-

versy leading up to the execution of this settlement

stipulation, or arising out of the same, except in

enforcement of this settlement stipulation. In ad-

dition, neither party will aid, abet, encourage or

cause any third parties to file any such litigation,

charges or petitions grounded in the instant con-

troversy.

8. All issues of alleged violations of the terms of this

agreement shall be submitted to the arbitrator,

who shall have full authority to resolve such issues,

including cease and desist powers. The arbitrator

37a

shall, if possible, order a hearing upon twenty-

four hours notice to the parties. The arbitrator’s

decision shall be final and binding and enforce-

able in the Federal District Court.

All litigation, including the Labor Board charge and

petition, was withdrawn as agreed. The card check was

held on August 28, 1973, at which time the arbitrator

determined that 49 of 73 office employees other than

dispatchers and 14 of 19 dispatchers had requested rep-

resentation by Local 391 by executing valid authoriza-

tion cards. Respondent thereupon granted recognition

to Local 391 in a unit of “Kernersville, North Carolina

office employees including the maintenance office, exclud-

ing log clerks, supervisors, managerial employees, guards,

salesmen, confidential employees, and all employees cov-

ered by existing labor agreements.” Resolution of

whether dispatchers were in the unit as office employees

or out as supervisors or managerial employees was not

permitted to delay negotiations. A contract covering the

unit was executed on December 7, 1973.

Pursuant to the settlement stipulation, Respondent

filed a unit clarification petition. (Actually, it filed two,

Case 11-UC-14 on September 5, 1973, and Case 11-UC-

15 on September 20. Why the first was withdrawn and

the second substituted for it is not clear in this record.)

An extensive hearing was held in Case 11-UC-15 before

a Regional Office Hearing Officer, closing, apparently, in

January 1974. In the meantime, the first of the three

cases involved in this proceeding, Case 11-CA-5506, had

erupted.

Respondent issued written job descriptions on Septem-

ber 26, 1973, covering each of the three types of dis-

patchers who work at the Kernersville terminal. Each

contained explicit statements of authority which, if ac-

tually possessed by the dispatchers in that category,

clearly made them supervisors within the meaning of the

38a

Act. Included among the 27 “authorities, duties, and re-

sponsibilities“ on the document titled “Job Description

for Central Dispatchers” are, for example:

12. Authority to grant time off to drivers while on

route. This authority involves extension of break

times and rest periods as the need arises.

15. Authority to originate reprimands for drivers due

to faulty performance.

16. Authority to discharge a driver while enroute for

violation of company policies or contract provisions.

20. Authority to initiate the hiring and/or assigning

part-time help on weekends. This involves utiliza-

tion as the need arises of local drivers based at

various terminals throughout the system for over-

the-road work assignments.

Among the 22 on the document titled “Job Description

for Long-haul Dispatchers” are, for example:

9. Authority to grant time off or to assign overtime

work to the dispatch clerks as the need arises.

10. Authority to discharge or to effectively recom-

mend the discharge of a dispatch clerk.

11. Authority to recommend pay raises and promo-

tions for dispatch clerks.

* * eo „

16. Authority to reprimand drivers and recommend

further disciplinary action to the driver super-

visor if infractions of the contract and company

standards come to the attention of the line-haul

dispatcher.

20. Authority to grant time off to drivers. This au-

thority also refers to vacation time and sick time

except that the line-haul dispatcher shall coordi-

nate with the driver supervisor before granting

time off for vacation and sickness.

Among the 20 on the document titled “Job Description

for Local Dispatchers” are, for example:

7. Authority to hire part-time employees as the need

arises. Local dispatch should maintain a pool of

drivers to be utilized as the need arises.

8. Authority to recommend the hiring of part-time

employees as permanent employees.

9. Authority to discharge any local driver whose con-

duct warrants immediate discharge under existing

labor agreements.

10. Authority to effectively recommend other discipli-

nary action relative to local drivers who have vio-

lated provisions of existing agreements.

14. Authority to grant time off to local drivers as the

circumstances so require.

Local 391 filed its charge in Case 11-CA-5506 on Oc-

tober 4, 1973, alleging that Respondent “has attempted

to change and/or implement certain changes in the au-

thority and responsibilities of the dispatchers employed

at the Kernersville, N.C. terminal in order to convert

said dispatchers from the status of employees covered

by the Act to supervisors excluded from coverage under

the Act” with an intention “to convert said dispatchers

to supervisors and, thereby, depriving them of their rights

under Section 7 of the Act. This conduct of Respondent

“constitutes a cynical attemp to manufacture favorable

evidence for use in the unit clarification proceeding (11-

UC-15).” (Case 11-CA-5642, another 8 (a) (1), (3), and

40a

(5) charge, was triggered by a training program for

supervisors to which Respondent began sending the dis-

patchers in February 1974. Case 11-CA-5718, an 8(a)

(1) charge, was triggered by conversations in April

1974 between dispatchers and Sidney Elms, Respondent’s

director of central dispatch at the time.) The Regional

Director dismissed Case 11-CA-5506 on October 26, 1973,

and the dismissal was affirmed on appeal to the General

Counsel on December 17. However, on December 27,

1973, the Union filed a motion for reconsideration with

the General Counsel. That motion was granted and the

Regional Director was reversed on April 3, 1974. The

case was remanded to the Regional Director for issuance

of an 8(a)(1), (3), and (5) complaint. The Regional

Director thereupon suspended further processing of Case

11-UC-15 pending litigation of the complaint in Case

11-CA-5506. Respondent asked the Board to reverse him.

The Board denied Respondent’s appeal in a telegram

dated June 26, 1974, and signed by its executive sec-

retary which read, in pertinent part:

THE BOARD CONCLUDED THAT IN AS MUCH AS EVIDENCE

AS TO CERTAIN EMPLOYER CONDUCT, INCLUDING BUT

NOT LIMITED TO THE PROMULGATION OF JOB DESCRIP-

TIONS, WAS INTRODUCED IN THE HEARING 11-UC-15

WHICH EVIDENCE IS RELEVENT TO THE ISSUES THEREIN

BUT WHICH EMPLOYER CONDUCT IS ALLEGED IN 11

CA-5506 TO HAVE BEEN VIOLATED [SIC] OF SECTIONS

8 (A) (1), (3) AND (5) OF THE ACT THE REGIONAL

DIRECTORS DECISION TO HOLD THE UC PROCEEDING IN

ABEYANCE PENDING RESOLUTION OF THE ISSUES IN

THE UNFAIR LABOR PRACTICE PROCEEDINGS WAS AN AP-

PROPRIATE EXERCISE OF HIS DISCRETION

At the opening of the hearing in this proceeding, Re-

spondent moved for summary judgment. The settlement

stipulation entered into by Respondent and Local 391

provides that the only important issue in this proceed-

4la

ing, namely, the status of dispatchers, is to be resolved

in a unit clarification proceeding; it provides that Board

litigation subsequent to the settlement, other than the

UC proceeding, will be limited to enforcement of the

settlement stipulation, an element not present in this

proceeding ; and it provides that all issues of alleged vio-

lations of the settlement stipulation, the issue in this

proceeding, will be submitted to the arbitrator. The

Board has decreed in Collyer Insulated Wire, A Gulf

nd Western Systems Co., 192 NLRB 837 (1971), that

it will defer where the parties before it are also parties

to a collective-bargaining agreement providing for ar-

bitration of the controversy alleged to be an unfair labor

practice. The settlement stipulation of August 24, 1973,

between Respondent and Local 391 is analogous to such

a collective-bargaining agreement. Insofar as the ra-

tionale of the Collyer doctrine is concerned, it is more

appropriate for deferral than à generalized grievance

and arbitration clause in a contract which concerns itself

with things in addition to the resolution of disputes be-

tween the parties, for it deals in specific terms with the

very controversy which gave rise to it, and the manner

which the parties have agreed will be used to resolve

any further disputes growing out of it. Therefore, on

June 27, 1974, I granted Respondent’s motion as to all

aspects of the amended consolidated complaint except

the allegations of independent violations of Section 8

(a) (1) of the Act on the ground that forcing Respond-

ent to participate in this proceeding in addition to the

long hearing already held in Case 11-UC-15 was a de-

nial of due process. I adjourned the hearing indefinitely

in order to give the General Counsel an opportunity to

appeal my ruling to the Board. The Board reversed on

September 11, 1974, by a telegram signed by an associate

executive secretary which merely stated, in pertinent

part, “General Counsel’s request for special permission

to appeal from ruling of Administrative Law Judge

42a

granting Respondent’s Motion for Summary Judgment

is hereby granted, the appeal is granted and the Admin-

istrative Law Judge is reversed.”

When the hearing resumed on November 6, 1974, Re-

spondent filed a motion for partial summary judgment

seeking dismissal of the 8 (a) (5) portion of the com-

plaint on the ground that the General Counsel had vio-

lated the Freedom of Information Act, 5 U.S.C. Sec.

552, by denying its request for material contained in the

General Counsel’s and the Board’s files which would

reveal the theory on which the General Counsel alleged

that Respondent was under a duty to bargain with Local

391. I denied the motion with leave to seek to reopen

the hearing in the event the Supreme Court of the United

States issued its decision in N.L.R.B. v. Sears, Roebuck

& Co., 480 F.2d 1195 (1973), while this proceeding was

still before me. Respondent’s subsequent motion to dis-

miss the 8 (a) (5) portion of the complaint is disposed

of by my recommended Order herein.

2. Where they stand now

At the close of the hearing Respondent took the posi-

tion that the issue posed by my ruling on June 27, 1974,

on its original motion for summary judgment was stil!

before me, citing the Board’s failure to give any reasons

for its decision in its telegram of September 11, 1974.

With respect to the due process issues, its brief reads:

It is clear that the record in the instant case

compels a finding that the Respondent’s dispatchers

are and were, at all times material herein, persons

properly excluded from the protections of the Act,

thereby precluding findings that the Respondent vio-

lated Sections 8 (a) (1), 8(a) (3), or 8(a) (5) as to

its dispatchers.

Admittedly, such a decision by the Administrative

Law Judge would moot the presently blocked de-

43a

cision in the unit clarification proceeding (11-UC-

15). However, at this juncture, the Respondent sug-

gests, the Administrative Law Judge should be in

no way reticent on that account.

The Respondent, in spite of binding agreements

to the contrary, has been forced to litigate its case

not once but twice. The Respondent did everything

in its power to avoid the second trial, pointing out

to the Board time and again, the inequities and

burden involved, as well as the potential conflict be-

tween a decision of the Administrative Law Judge

and the blocked decision in 11-UC-15.

“No matter,” said the Board; “try it again. The

Charging Party is not pleased with the record it

made in the first trial. It seeks another forum, in

spite of its agreement not to do so.”

* * * *

The Respondent still believes that it has been, at

all times, entitled to the decision which it sought in

the unit clarification proceeding. Nevertheless, the

Respondent will now join with the Board and the

Charging Party in urging the Administrative Law

Judge to dispose of the central issue in this entire

case.

Were the Respondent’s dispatchers supervisors

prior to September 26, 1973? The Respondent is

confident that the record in this case shows over-

whelmingly that they were.

Although the Respondent earnestly maintains that

the supervisory status of the dispatchers is disposi-

tive of the Section 8 (a) (5) allegations in the Com-

plaint, the Respondent does not waive, and reasserts

herein, the position taken in its Motion For Partial

Summary Judgment (RX 5) denied at trial. As-

suming, arguendo, that the Respondent did unilater-

44a

ally convert its dispatchers from employee status to

supervisor status, General Counsel has failed com-

pletely to show the source of any obligation on the

Respondent to first bargain with the Charging Party

about such an act.

I do not agree with counsel for Respondent that “such

a decision by the Administrative Law Judge would moot

the presently blocked decision in the unit clarification

proceeding (11-UC-15).” Absent an agreemnt between

Respondent and Local 391 that both parties have waived

their rights under the August 24, 1973, settlement stipu-

lation and that they will be bound on the unit question

by the decision in this proceeding—and there is no evi-

dence of any such agreement in this record—the end of

this proceeding will merely unblock Case 11-UC-15. The

unit question will not be resolved until a subsequent final

decision issues in that case.

More importantly, in view of Respondent’s belief “that

it has been, at all times, entitled to the decision which it

sought in the unit clarification proceeding,” I do not read

“the Respondent will now join with the Board and the

Charging Party in urging the Administrative Law Judge

to dispose of the central issue in this entire case” as a

waiver by Respondent of its right to pursue the argu-

ment, before Board and courts, that it was denied due

process when it was forced to defend itself in an unfair

labor practice proceeding in order to have the unit ques-

tion resolved rather than having it resolved in the unit

clarification proceeding to which it and the Union had

committed themselves. However, by its telegram of Sep-

tember 11, 1974, the Board has already ruled against

Respondent on that issue. I am bound by that ruling.

As to the Freedom of Information Act due process issue,

I have received no posthearing renewal of the motion I

denied on November 6, 1974. I find, therefore, that Re-

spondent has been accorded due process at all stages of

this proceeding.

45a

B. The Merits of the Dispute

1. The supervisory issues

a. Credibility

There are no significant credibility conflicts in this

record. Each side relied, in large part, on the testimony

of dispatchers to establish the facts on which it relied.

Dispatchers who obviously do not consider themselves

supervisors (and presumably want to be represented by

the Teamsters) testified for the General Counsel. The

thrust of their testimony was that they possessed none

of the statutory indicia of supervisory status, i.e., that

they have never hired or fired another person and on

through the whole litany of Section 2(11) of the Act, cul-

minating in a picture of duties so routine as not to

require the exercise of any independent judgment. Dis-

patchers who obviously do consider themselves supervisors

(and presumably do not want to be represented by the

Teamsters) testified for Respondent. The thrust of their

testimony was that they, or others as to whom they had

firsthand knowledge, had done some of the things listed

disjunctively in Section 2(11), with emphasis on the

nonroutine nature of their day-to-day duties. However,

there are no significant points in the record at which a

witness for one side testified that a hard fact—as dis-

tinguished from a conclusion—testified to by a witness

for the other side was not so.

The simplest example contained in the record will

suffice, I hope, to make this point clear. Respondent has

two local dispatchers. Paul Orion Church testified for the

General Counsel. James Robert (Bob) Merritt testified

for Respondent. There is no evidence to refute Church’s

testimony that he was not told, at the time he became a

local dispatcher, that he was a supervisor. There is no

evidence to refute Merritt’s testimony that he was. Both

were obviously honest men doing their best to tell the

46a

truth as they perceived it. I believe both of them. For

whatever significance it has on the issue of whether local

dispatchers are supervisors within the meaning of the

Act—and obviously (once again), given the state of this

record, it cannot be the point on which the whole issue

turns—Merritt was told, Church was not.

So it goes throughout the myriad facts thrown into

this record by both sides. From that mass of testimony,

however, emerges a picture of the way Respondent's

dispatchers go about handling their jobs each day which

is essentially undisputed. Those are the facts I have

attempted to set forth below. Since all witnesses agreed

that the issuance of job descriptions on September 26,

1973, changed nothing about the way these men go about

their jobs, these facts are as true today as they were in

January 1973, the earliest period any witness gave as

the start of union talk among Respondent’s dispatchers,

or on July 9, 1973, the day Respondent first took the posi-

tion with the Union that its dispatchers were supervisors

within the meaning of the Act, or on July 13, 1973, the

day dispatchers did not join other terminal workers in

a strike for recognition, or on August 24, 1973, the day

Respondent and the Union agreed to let the Board decide

the question in a unit clarification proceeding, or on

September 26, 1973, itself.

b. Respondent’s system

Respondent operates on the east coast with one termi-

nal as far west as Cleveland. Its main office is located

in Winston-Salem. The terminal at Kernersville opened

in 1968. Kernersville is located some 10 miles east of

Winston-Salem. The Kernersville terminal is 1 of 41

operated by Respondent.

Kernersville is Respondent’s main break-bulk terminal.

The only other break-bulk terminal is located in J ackson-

ville. Respondent’s Florida operations are sui generis.

47a

Jacksonville relays freight into and out of all of Florida.

Florida drivers do not drive farther north than Jackson-

ville. Non-Florida drivers do not drive farther south

than Jacksonville. Trailer loads of freight into or out of

Florida which require their bulk to be broken because

they are destined for more than one consignee have it

broken at Jacksonville. Those which do not are subjeet,

at a minimum, to a change in driver and tractor, for

Respondent’s Florida drivers are owner-operators. Other

than Florida, however, Kernersville serves as the break-

bulk terminal for all of Respondent’s operations. As

such, it is the center of the web of Respondent’s system

from Jacksonville north. Richmond is Respondent’s only

relay terminal other than Jacksonville.

Respondent underwent a systemwide strike by the

Teamsters from February to August 1974. Prior to that

strike, Respondent had some 700 over-the-road drivers

domiciled at Kernersville. At the time of the hearing,

because the volume of Respondent’s business had not yet

recovered from the effects of the strike, that number was

down to approximately 450 with the balance still on lay-

off. During the summer of 1973, the crucial period in

this proceeding, there were some 45 over-the-road drivers

domiciled in terminals south of Kernersville and another

45 domiciled in Richmond. Drivers domiciled at termi-

nals other than Kernersville are referred to, from the

Kernersville point of view, as foreign drivers. Terminals

other than Kernersville are foreign terminals.

Kernersville dispatchers are, and always have been,

salaried. They do not, and never have, punched a time-

clock. They participate in, and have always participated

for those years when Respondent’s profits were large

enough to trigger profit sharing, Respondent’s annual

bonus plan. In these three respects they are now unlike

employees in the terminal office unit and like admitted

supervisors and managers. However, at the time of the

August 24, 1973, settlement, these distinctions did not

48a

clearly separate employees from supervisors within the

meaning the Act. At that time freight inspectors were

also salaried, did not punch a clock, and participated in

the bonus plan. They were placed in the unit by agree-

ment. They were subsequently converted to hourly status,

required to punch a clock, and deprived of their bonus

benefits. The latter represented no immediate real loss

to freight inspectors. Because of its profit situation, Re-

spondent paid no bonus in 1974 for 1973. As of the time

of the hearing, Respondent’s profit situation for 1974 was

still an open question.

Respondent is a signatory to the National Master

Freight Agreement and various local cartage agreements

in each of the Teamsters jurisdictions in which it oper-

ates terminals, including Kernersville. The former con-

trols its relationship with its over-the-road drivers. The

latter controls its relationship with its local drivers.

Over-the-road drivers are paid, basically, by the number

of miles they drive. Local drivers are paid by the num-

ber of hours they work. Regulations promulgated by the

United States Department of Transportation also loom

large in the relationship of Respondent with its drivers.

The interplay of union contracts and DOT regulations

creates a situation the complexities of which are beyond

the scope of this decision, especially where over-the-road

operations are concerned. This somewhat simplified ex-

planation will, I think, be sufficient for an understanding

of the relationship of contracts and regulations to the

issues : d

Drivers are forbidden to drive longer than 10 hours

without rest or to be on duty for longer than 15 hours in

any 24-hour period. Each driver must keep an accurate

log of his driving and duty time to ensure compliance

with this rule. When a driver has driven for 10 hours

he is said to be out of hours. Log clerks, who are in-

cluded in the terminal office employees unit, keep track

49a

of drivers’ hours. Drivers report to them when they re-

turn from trips. Drivers keep track of their own hours

when they are on the road. When an over-the-road

driver is dispatched from his domicile, he may drive up

to four full 10-hour periods before returning to his domi-

cile without Respondent incurring any obligation to com-

pensate him for time when he is not driving or otherwise

on duty. When a driver is on a trip and not driving or

otherwise working, he is said to have been put to bed.

On a maximum, four-leg trip, Respondent may put its

drivers to bed for as little as 8 and as many as 13 hours

after the first leg and must put them to bed for 8 hours,

no more, no less, after the second and the third legs. If

it keeps them on the road longer than four legs, it must

compensate them on a time basis for each subsequent

rest period. Whether the drivers are alone (single opera-

tion) or working as a team of two in a tractor which has

a bunk for the off-duty or out-of-hours driver (double

operation), the application of these facts is the same.

The only important difference between single and dou-

ble operations is that the truck can keep working, thus

increasing Respondent’s revenue, although an individual

driver cannot.

Drivers are dispatched from any terminal, whether

their domicile or one to which they have driven in the

course of a multilegged trip, on a first-in first-out basis.

In the event the first-in first-out principle is violated,

whether intentionally or unintentionally, the driver who

has been bypassed is said to have been run around. A

driver who has been run around is entitled to penalty

pay. Drivers are also entitled to compensation on a time

basis for waiting; e.g., delays which occur when they

have to wait at a consignee’s premises before unloading

or delays which occur when their rest period is up at a

terminal other than their domicile and the terminal has

no trailer ready for them to pull. By the same token,

they are entitled to delay pay at their domicile when

50a

they report for a trip as ordered and the load for which

they have been summoned is, for any reason, not ready

to go.

There are three categories of dispatchers at Kerners-

ville, central, line-haul (or over-the-road), and local.

To dispatch is to control the flow of trailers by control-

ling the comings and goings of drivers. The ‘ine-haul

and local dispatch functions are performed at each of

Respondent’s 41 terminals, for each terminal must con-

trol the comings and goings of both over-the-road and

local drivers at that terminal. At some terminals the

functions are combined in the same dispatcher. At some

they are performed by a person or persons who have

additional duties and titles other than dispatcher. At

Kernersville, they are performed by separate catcgories

of employees called linehaul dispatchers and local dis-

patchers. The central dispatch function is unique to

Kernersville. Central dispatchers are found only there

in Respondent’s system.

e. Central dispatchers

(1) Facts

Respondent’s nine central dispatchers are responsible

for moving freight in the manner which will maximize

profits. They work three 12-hour shifts and one 6-hour

shift each week. Two of them are on duty at any given

moment. Together, they man the central dispatch office

around the clock and around the year. They are super-

vised by Joe Scott, Respondent’s director of central

dispatch.

The central dispatch office is a large room adjacent to

the line-haul dispatch office. Its distinctive feature is the

boards which line its walls, 1 for each of Respondent’s

41 terminals. Each board contains 12 horizontal lines.

Each line is actually a slot in which pieces of plastic

5la

measuring approximately 3 by 6.5 inches can be placed.

Each piece of plastic bears a number corresponding to a

trailer and is known as a trailer backing. Each contains

a pocket in which a 3- by 5-inch card can be inserted.

When a trailer backing is placed in the bottom line of

a terminal’s board, it indicates that the trailer is en

route to that terminal. When it is placed in the line

next above the bottom line, it indicates that the trailer is

at the terminal, waiting to be unloaded, and so on up the

board. Each line indicates the status of the trailer at

any given moment. The fourth line from the bottom, for

example, indicates that the trailer is empty, ready to be

loaded. Central dispatchers move the trailer backing

from line to line as the trailer’s status changes. When

the trailer is dispatched, the trailer backing is moved to

the bottom line of the terminal which is the trailer’s

destination or, in the case where the trailer is headed

directly to a consignee’s premises, which has jurisdiction

over the area. When a tractor is attached to a trailer,

a small plastic tab bearing the number of the tractor

is attached to the trailer backing.

The cards which are inserted in the trailer backings

contain information about the freight which is on the

trailer. When trailers are loaded at Kernersville, the

cards are filled out in the warehouse. When the trailer

is loaded at some other terminal, the information is sent

to central dispatch from the terminal.

Central dispatch is linked to terminals other than

Kernersville by teletype and telephone. Central dispatch-

ers wear telephone headsets and spend a major part of

their time in telephone communications with either ter-

minals or drivers. For example, the driver trip card

which is given to each driver when he is dispatched con-

tains printed instructions that he is to call central dis-

patch in the event he is delayed for more than 1 hour,

for it is essential to Respondent’s system that central

52a

dispatch know where every trailer is at every moment

of the day or night. The two central dispatchers who are

on duty at any given time split the work geographically.

One handles operations north of Kernersville; the other

operations, south.

Only a few of Respondent’s terminals other than Ker-

nersville are open around the clock. This puts a special

burden on central dispatch at night and over weekends.

It also generates the requirement for two detailed re-

ports which each terminal must forward to central dis-

patch each day, either by teletype or telephone. By 8 a.m.

each working day each terminal must give central dis-

patch a complete rundown on the state of its yard. The

central dispatchers on duty at that hour utilize that

report to make sure that each terminal’s board accurately

reflects what is happening in that terminal at that hour.

As each terminal closes, it sends its final report to cen-

tral dispatch. This is, essentially, the same as the 8 a.m.

report and is used for the same purpose. In addition, it

tells central dispatch what loaded trailers are sitting in

the yard waiting to be pulled away by drivers who

arrive during the night or over the weekend so that

central dispatch can do for the terminal what its own

line-haul dispatcher does during the day; i. e., dispatch

the driver on the next leg of his trip. The final report

sometimes lists all trailers ready for dispatch in the

order in which they should leave the terminal. More

often, it lists only the two or three with top priority and

leaves the remainder up to the discretion of the central

dispatcher on duty when the driver calls for instructions.

In addition to these two full reports, terminals are in

constant contact with central dispatch each day, report-

ing when loads are dispatched to terminals other than

Kernersville and working with central dispatch on prob-

lems such as their needs for special equipment like re-

frigerated trailers or extra equipment not immediately

available from Respondent’s own pool. In the latter event,

53a

they must first obtain the permission of the central dis-

patcher on duty before they can rent either trailers or

tractors, for only he knows whether other terminals

have unused equipment and can make the necessary

judgment as to whether paying rent or driving empty

miles (the term used to describe the movement of empty

trailers or bobtailed tractors) is the more economical

solution to whatever problem has arisen.

Weekends create another special situation in Respond-

ent’s operations. Ideally, each terminal would have one

full trailer load of outbound freight for each full trailer

load inbound. Then each driver who hauled a full trailer

in could drop it, hitch his tractor to another full trailer,

and, as soon as his hours permitted, haul it away without

getting paid for any waiting time. The real world, how-

ever, is somewhat less than ideal. When more tractors

arrive at a terminal than are required to haul outbound

freight away, the terminal is said to be overrun. The

result is extra expenses charged to the terminal’s ac-

count which are an anathema to terminal managers since

their bonus depends not only on Respondent showing a

profit in its systemwide operations but also at their par-

ticular terminal. In the past the overrun problem has

been especially acute in the early days of the week be-

cause of inbound freight that arrives while terminals are

closed for the weekend. As a result a company policy

has been established that each terminal will coordinate

with central dispatch at the end of the week as to the

number of trailers which will be sent to it over the

weekend and through the following Tuesday. The ter-

minal manager tells central dispatch how many loads he

can efficiently receive, given the personnel he will have

available for unloading, and his needs for trailers for

outbound freight on the Monday and Tuesday upcoming.

Central dispatch pledges its best efforts to send him that

much freight and no more. From Wednesday through

Friday there is no limit on the number of trailers cen-

54a

tral dispatch can send into any terminal. The limitations

imposed by the weekend policy, however, are not hard

and fast restrictions on central dispatch’s authority. It

can overrun terminals on weekends and frequently does

when the economics of the situation dictate. An example

of such a situation is the development of loads of priority

freight, known in Respondent’s parlance as RX loads, for

a terminal after the weekend deal has been made. Over-

running of terminals was particularly common following

the end of the strike in August 1974 when Respondent

was struggling to get its business back to its prestrike

level.

Respondent also has on duty at all times at the Ker-

nersville terminal an official known as a driver super-

visor. Driver supervisors are admittedly supervisors

within the meaning of the Act. Their office is in the

vicinity of central dispatch. They are supervised by

Joseph Marsh, Respondent’s director of driver personnel.

Their job is to assist Marsh in supervising over-the-road

drivers. For instance, the driver supervisor who is on

duty when a driver returns to Kernersville from a trip

checks the driver’s trip card in order to initiate the

paperwork required to get the driver paid what he has

earned on the trip. If necessary, driver supervisors also

look at the driver’s tachograph, a device which keeps a

running record of time, speed, and other data as a truck

is operated. They also handle driver reprimands and, in

their early stages, grievances. Having a driver super-

visor on duty 24 hours a day postdates the opening of

the Kernersville termina]. Prior to March 3, 1970, driver

supervisors were on duty only during the day.

Deciding which load to pull first out of a closed ter-

minal, deciding whether to permit terminals to rent

equipment instead of logging empty miles, and deciding

whether to overrun terminals are three examples of the

judgments which central dispatchers must make in their

55a

day-to-day efforts to move freight efficiently. Each affects

the driver involved. When a central dispatcher tells a

driver who calls from a closed terminal that he should

take trailer A rather than trailer B, he is deciding that

the driver will be compensated for the number of miles

to trailer “A’s destination rather than the number of

miles to trailer B’s destination. When a central dis-

patcher tells a terminal not to rent the trailer it needs

because he will send it an empty trailer from another

terminal nearby, he is deciding that the driver who pulls

the empty trailer will be compensated for the number of

miles between the two terminals. When a central dis-

patcher decides that a terminal will be overrun, he is

deciding that the drivers who exceed the terminal’s im-

mediate need will have to be compensated for some wait-

ing time before they can be dispatched again. Many other

decisions that central dispatchers make daily affect over-

the-road drivers.

If a driver is at a terminal where there is a load ready

to be hauled but the central dispatcher knows that an

RX load will shortly be coming out of that terminal and

no other driver will be immediately available for it, he

will balance the cost of having the driver wait against

the cost of having the RX load delayed. This situation

may arise as a result of a call from a driver who has

arrived at a closed terminal or it may arise when a ter-

minal is open and the central dispatcher calls the ter-

minal’s over-the-road dispatcher with instructions about

the RX load. If the central dispatcher elects to have the

driver wait for the RX load, the driver, if he cannot be

put to bed until the RX load is ready, will be compensated

for waiting time.

An analogous situation arises when there are two driv-

ers available to pull a particular load. Under the first-

in first-out principle, the load belongs to driver A. Some-

times, for economic reasons, the central dispatcher will

56a

deliberately run around driver A and give the load to

driver B. Driver A then collects runaround pay.

Eighty-five percent of Respondent’s over-the-road dis-

patchers are terminal to terminal. On those occasions

where the dispatcher is terminal to consignee, the expla-

nation is usually that the delivery point is beyond the

radius around the nearest terminal which Respondent’s

contract with the Teamsters delineates as the local de-

livery area. Occasionally, however, the delivery point is

within a local delivery area. This calls for a penalty to

be paid to the terminal’s local drivers who have lost

the work. In situations analogous to deliberate decisions

to incur runaround pay, central dispatchers sometimes

decide, for economic reasons, to order over-the-road driv-

ers to make deliveries to consignees within local delivery

areas, the penalty notwithstanding.

Delivering directly to consignees creates a couple of

other situations which can affect a driver’s pay. Drivers

sometimes call in and report that they cannot begin

unloading immediately, either because the consignee is

not open or because the dock is blocked. The central dis-

patcher then must weigh the cost of having the driver go

on waiting time for the estimated period against the cost

of having the load taken on to the nearest terminal for

later delivery. If he decides that having the driver wait

is the better choice, the driver goes on waiting time.

Except where Respondent’s contract with its customer

provides otherwise, over-the-road drivers unload their

trucks at the consignee’s premises. Sometimes, for vari-

ous reasons, they are reluctant to do so and call central

dispatch for permission to hire casual labor to assist

them. Once again, the central dispatcher weighs the

economics of the situation. If he grants permission, the

driver decreases his waiting time and gets back on the

road that much sooner. If the central dispatcher turns

down the request, the nondriving time for which the

driver is compensated is extended.

57a

Some freight, such as cigarettes, which Respondent

carries are known as security loads. Company policy is

never to leave a security load unattended. When a driver

who has arrived with a security load calls in from a

closed terminal or from the premises of a closed con-

signee who does his own unloading, the central dispatcher

instructs him to stay with the trailer until the terminal

or the consignee opens. The driver is compensated for

waiting time.

Drivers who are anxious to maximize their earnings

will sometimes call in while on the road and offer to give

a central dispatcher all their breaks. This is slang for

agreeing not to claim compensation for fourth and sub-

sequent rest periods in a particular dispatch if the dis-

patcher will keep them out beyond four driving periods,

Since driving pays more than waiting and since finish-

ing a trip means going back to the bottom of the avail-

able drivers’ board to wait for another dispatch on the

first-in first-out principle, giving all his breaks to the

dispatcher can greatly enhance the income of a driver

who is not anxious to get home. If there are loads avail-

able which make it to Respondent’s economic advantage

to keep the driver on the road and if the central dis-

patcher thinks that he can trust the driver who has made

the offer, he accepts all the driver’s breaks. The driver

profits accordingly.

Other decisions which central dispatchers make on a

daily basis as a result of calls from drivers affect the

routes they drive and the time they work. States limit

by law the weight which tractor-trailers can haul on their

highways. Respondent’s policy is to abide by those laws.

Sometimes, however, violations are unavoidable as, for

example, where the load, such as a single piece of machin-

ery which weighs more than the law allows, is indivisible.

Overweight loads which originate in Kernersville are a

problem for line-haul dispatchers. However, overweight

58a

loads which originate at other terminals sometimes be-

come problems for central dispatchers. For example, a

driver is told, on leaving a foreign terminal, to check his

weight at the first fuel stop he comes to. He does and

finds he is overweight. He calls central dispatch. The

central dispatcher then instructs the driver, to the extent

that he is able, what deviation to make from his assigned

route to avoid known official weighing stations.

The routes which Respondent requires its drivers to

drive on avoid, in the main, toll roads as a way of re-

ducing expenses. Sometimes a driver who calls central

dispatch because he has been delayed is instructed to

run all toll roads because the greater speed which can

be maintained may still permit the freight to arrive at

its destination on time. Sometimes a driver will request

permission to run all toll roads for his own purposes.

Whether the central dispatcher grants or denies his re-

quest depends, once again, on the economic consequences

to Respondent.

Drivers also sometimes ask for permission to deviate

from their assigned routes for personal reasons having

nothing to do with toll roads. Ideally, each leg of a trip

which an over-the-road driver is dispatched on can be

driven in the 10 hours which a driver can be behind the

wheel without resting. Thus, ideally, he can be put to

bed at a terminal. Terminals which have no bunkhouses

have arrangements with neighboring motels and, on

jumps which cannot be driven in 10 hours. Respondent

has arrangements with appropriately located motels along

the way where drivers are instructed to go to bed. Driv-

ers sometimes call into central dispatch and ask permis-

sion to deviate from their assigned route and/or to cut

their driving time a little short and/or to extend their

rest period a few hours so that, for example, they can

spend some time with relatives. The quid pro quo im-

plied in these requests is that they will be resting at a

59a

place which involves no motel bill for Respondent and/or

that they will not claim waiting pay for the additional

rest hours. Whether the central dispatcher grants or

denies permission depends, once again, on the economics

of the situation. If Respondent saves money and if the

freight will not be delayed unduly, he frequently permits

the driver to vary route and/or schedule as the driver

wishes. If, on the other hand, the central dispatcher

denies permission, the driver goes off on a frolic of his

own at his peril. The peril is real, for deviations from

his orders cannot be erased from the tachograph which

the driver turns in to the driver supervisor at the end

of his trip.

Central dispatchers have a money relationship with

over-the-road drivers which is even more immediate than

the pay consequences detailed above. When a driver on

the road needs cash he calls central dispatch and the

dispatcher, in appropriate circumstances, sends it to him.

Usually, this is accomplished by the central dispatcher

authorizing a truck stop with which Respondent has an

ongoing relationship to give cash to the driver and reim-

bursing the truck stop by filling out a purchase order

form and sending it through Respondent’s bill-paying

system. On other occasions, the central dispatcher wires

money. The former system usually covers the situation

where a driver has run out of funds while on the road

and needs eating or toll money. The latter occasionally

(and rarely) comes into play when a driver is arrested

for speeding or is caught in an overweight truck. State

police hold driver and/or truck until some arrangement

is made for paying the fine. Sometimes, apparently in

locations where Respondent has an ongoing relationship

with the police, they settle for an assurance from the

central dispatcher that the fine is on its way. The cen-

tral dispatcher then uses the purchase order technique.

Sometimes the police refuse to release truck and/or

60a

driver until they have money in hand. The central dis-

patcher then uses the direct wire technique.

Other situations in which drivers are in contact with

central dispatchers do not involve routes, time, or the

driver’s money. Drivers do not break seals on trailers

without first getting central dispatch’s permission. These

calls come in when a driver has a shifting or leaking

load. Whether the central dispatcher grants or with-

holds permission depends on how serious the situation is.

Generally, he grants it since the driver on the spot is in a

better position to appreciate what has happened than a

central dispatcher at the other end of a long-distance

teleshone call.

Drivers do not extend credit to consignees without first

getting central dispatch’s permission. This situation oc-

casionally arises when an over-the-road driver is deliver-

ing a C. O. D. shipment directly to a consignee and the

consignee has no money available. The central dispatcher

must then choose between the alternatives of dropping the

freight without receiving payment or instructing the

driver to carry the freight to the nearest terminal and

let it solve the problem.

Drivers do not cross picket lines at places where they

are supposed to make deliveries because their union con-

tract says they do not have to. When a central dis-

patcher gets a call from a driver in that situation, he

must figure out where to tell the driver to drop the

freight.

Finally, there is the situation which arises when an

over-the-road driver refuses to carry out an order given

to him by a central dispatcher. The dispatcher is under

instructions to tell the driver to catch the bus, i.e., leave

the truck and return immediately to his domicile ter-

minal. (In recent years catch the bus has become catch

the plane, but the principle remains the same.) The

6la

situation does not occur often. (It occurred more fre-

quently prior to the current contract with the Union

than it does now when central dispatchers ordered in-

bound drivers anxious to get home to turn back up the

roau. The present contract, executed in 1973, provides

Lene penalty pay in that situation.) On most of the occa-

sions when such a confrontation has developed between

a driver and a central dispatcher, the driver has backed

down and done what he was told. On those rare occa-

sions when the driver has actually caught the bus, he

has been discharged or otherwise disciplined only after

an independent investigation by the director of driver

personnel and/or his assistants.

The above list by no means exhausts the situations in

which drivers are in contact with and receive instruc-

tions from central dispatchers.

(2) Analysis and conclusions

Since the General Counsel has the burden of proof, he

has the unenviable task of proving a negative; i. e., that

Respondent’s dispatchers do not meet any of the indicia

of supervisory status set forth in Section 2(11) of the

Act in their relationship with any of Respondent’s em-

ployees. His burden is the same with respect to each of

the three categories of dispatchers involved in this pro-

ceeding and his position is, in broad outline, also the

same as to each. Reduced to the oversimplicity of one

sentence, it is that they do not possess and have not

exercised any of the powers enumerated in Section 2(11)

and that the day-to-day exercise of their duties is so

routinized that it does not rise to the level of an exercise

of independent judgment. Respondent’s broad position is,

of course, the opposite. With respect to central dispatch-

ers, it contends that they supervise over-the-road drivers.

The two principal prongs of the General Counsel’s

argument that dispatchers carry out only routine duties

62a

are the fact that Respondent has laid down guidelines

for them, principally in the form of interoffice corre-

spondence, and, in the case of central and line-haul dis-

patchers, the fact that driver supervisors are on duty

24 hours a day. General Counsel’s Exhibit 34 is a good

example of interoffice correspondence. It was directed

to “Central Dispatch” by J. M. Newell, Respondent’s then

director of central dispatch, on March 13, 1973, with

copies to J. M. Bumgarner, vice president in charge of

operations, D. E. Ray, director of safety and security,

and J. H. Marsh, director of driver personnel. It reads:

Re: Road Driver Advances

Policy has been established not to give road drivers

advances prior to leaving Kernersville by the Driver

Supervisors. Investigation reveals drivers are get-

ting up the road a few miles and calling for and

getting advances from Central Dispatch. This prac-

tice is to be ceased immediately.

Advances are to be issued only to pay fines or in

extreme emergencies, or if a driver has been out sev-

eral days and is staying out and needs money for

tolls, ete. All other request are to be referred to the

driver supervisor on duty.

The items of interoffice correspondence (as well as

similar documents such as portions of Respondent’s man-

ual) which are in evidence vary as to the explicitness of

the policies they lay down or the stringency with which

they indicate the various policies are to be followed.

None, however, so limits the authority of central dis-

petchers in carrying out those policies that they are

ordered to deal with every situation precisely as Re-

spondent has instructed. The thrust of each is similar

to the thrust of General Counsel’s Exhibit 34. Central

dispatchers must still use independent judgment in apply-

ing Respondent’s overall policies to particular situations

as they arise.

63a

The General Counsel contends that central dispatchers

do not supervise over-the-road drivers because driver

supervisors do. Since driver supervisors are always on

duty, his argument runs, any decisions of a supervisory

nature made or actions taken are the decisions or actions

of the driver supervisor and not the central dispatcher

on duty at the time. Underlying this argument is the

distinction between the central dispatcher’s responsibility

for the freight to be moved and the driver supervisor’s

responsibility for the driver who moves it. The distinc-

tion is a valid one. The central dispatcher’s primary con-

cern is for the freight. The driver supervisor’s primary

concern is that drivers drive right. The irreconcilable

difference between the points of view of dispatchers who

testified for the General Counsel and those who testified

for Respondent is bottomed on this distinction. Dispatch-

ers who saw themselves as employees emphasized the

relationship between themselves and the driver super-

visor who worked on their shift. The picture they tried

to paint was one of bucking supervisory decisions to the

driver supervisor and abiding by his decision. Dispatch-

ers, present and former, who saw themselves as super-

visors deemphasized that relationship. Even the former,

however, testified in sufficient detail about their roles in

specific situations or incidents to place the relationship

between central dispatchers and driver supervisors be-

yond dispute. Central dispatchers do, on occasion, refer

drivers’ calls to driver supervisors and abide by what

they decide. But on other occasions they do not. And the

picture which emerges from the record as a whole is one

of a cooperative relationship between two supervisors

with two different responsibilities. If, on those occasions

when they both get involved, the driver supervisor’s de-

cision can be implemented without delaying the freight

or incurring undue expense, the central dispatcher goes

along with it. If not, he does not. In fact, the driver

supervisor’s first loyalty is also to Respondent. There-

64a

fore, seldom does a situation arise in which a driver

supervisor and a central dispatcher disagree as to how

a driver’s request should be answered. When, for exam-

ple, a driver supervisor tells a central dispatcher to let a

driver deviate from his route so that he can visit his

family, the driver supervisor does not talk in terms of an

order but in terms of a suggestion, either explicit or

implicit, that the driver should be accommodated if it will

make no difference in delivery of the freight the driver

is hauling, a subject about which the driver supervisor

has no knowledge. When the central dispatcher, who

knows about the freight, decides that a deviation will

make a difference, the answer is no. That is the answer

the driver gets, the driver supervisor’s suggestion to the

contrary notwithstanding.

The valid distinction between the role of driver super-

visors and the role of central dispatchers underlies the

General Counsel’s citation of The Baltimore Transit Com-

pany, 92 NLRB 1260 (1951), for the proposition that

an individual is not a supervisor when he controls the

movement of equipment and direction of personnel is

only an incidental result. In Baltimore Transit, the per-

sons found to be employees and not supervisors were

radio dispatchers. The Board said (at 1264):

In all these instances [of situations where the radio

dispatchers received calls about transit company ve-

hicles in distress and took steps to solve the prob-

lems], it is the contention of the Employers, the

radio dispatchers direct the activities of other per-

sonnel by the use of discretionary action. We do not

agree. The record shows that the great majority of

the calls received by the radio dispatchers involve

incidents for which there is a settled and specified

procedure to be followed.

The dispatcher, in most instances, merely relays

information to a mobile supervisor who proceeds to

65a

the location of the trouble and assumes charge. In

instances where immediate advice is required by the

operator, the dispatcher follows the routine proce-

dure indicated by his instructions. The evidence is

conflicting on the question as to whether the dis-

patcher, on his own initiative, may send equipment

out to replace or supplement vehicles in regular oper-

ation. In any event, the type of direction here sup-

plied by the radio dispatcher is concerned primarily

with equipment rather than personnel. We have

previously held that where the direction and control

exerted by the individual is over the movement of

equipment and the direction of personnel occurs only

as an incidental result, the statutory definition of

Supervisor“ does not apply. Accordingly, we find

that the Employers’ radio dispatchers are not super-

visors as defined in Section 2(11) of the amended

Act, and, upon the entire record, we find that the

dispatchers have a sufficient community of interest

with other clerical employees to be included in the

existing bargaining unit. [Footnotes omitted.]

The distinctions between Baltimore Transit and this pro-

ceeding require the conclusion that Respondent’s central

dispatchers are supervisors within the meaning of the

Act.

Since Section 2(11) is written and has been con-

sistently interpreted disjunctively, the last of the many

authorities of central dispatchers set forth in the section

entitled “Facts” just above is enough to support that

conclusion. The General Counsel litigated catch-the-bus

situations as if they were an exercise of a power to dis-

charge. The evidence in this area clearly will not sup-

port that conclusion because discharge or other discipline

only followed an independent investigation by higher level

supervisors. But there can be no doubt that central dis-

patchers have, and have exercised, the authority to sus-

pend drivers who have refused to follow their instructions,

66a

pending independent investigation of whether the drivers

should be discharged. The fact that the power is exer-

cised infrequently does not make it any the less real.

The fact that drivers usually back down rather than have

the central dispatchers follow through with their threats

to suspend them does not make the exercise of the power

merely sporadic. The fact that investigation by others

follows suspension does not make the suspension any less

effective when it is imposed. Authority, “in the interest

of the employer, to. . . suspend. . . other employees” is

one of the specific indicia of supervisory status set forth

in Section 2(11).

But Respondent’s central dispatchers are distinguished

from The Baltimore Transit Company’s radio dispatchers

in many other respects. Central dispatchers use inde-

pendent judgment all day long in making decisions which

affect the wages, hours, and working conditions of over-

the-road drivers. Their direction of personnel is not

merely incidental to their direction of equipment. Direc-

tion of drivers lies at the very heart of their carrying

out the jobs they have been hired to do, overseeing the

movement of freight in the most economical manner pos-

sible. I conclude, therefore, on the basis of the record

as a whole, that central dispatchers also responsibly direct

over-the-road drivers within the meaning of Section

2(11).

d. Line-haul dispatchers

(1) Facts

Respondent’s line-haul dispatchers are responsible for

sending over-the-road drivers on their way from the

Kernersville terminal and checking them in when they

return. Four are a full complement although, at the

time of the hearing, there were only three on the pay-

roll. Lonnie Booe, Respondent’s supervisor of road dis-

patch, was himself pulling a full tour of duty as a dis-

67a

patcher in order to cover the job. (Booe’s immediate

Supervisor is the director of central dispatch. There is

no level of supervision between the latter and central dis-

patchers. ) There are also four dispatch clerks. One

dispatcher and one dispatch clerk are on duty at the same

time. Their shifts are the same as those of central dis-

patchers. Like central dispa the li

— sla gc spatch, the line-haul dispatch

The dispatch procedure begins when th

finishes loading the trailer. The trailer — 3

in the trailer backing and sent to central dispatch along

with the bills of lading for the freight on the trailer.

Central dispatch usually marks a departure time on the

card before handing card, backing, and bills to line-haul

dispatch. The time of dispatch is based on a schedule

of running times from Kernersville to the various points

to which trucks are sent and is computed by subtracting

running time from the hour central dispatch wants the

truck to reach its destination. If central dispatch places

no time of dispatch on the card, line-haul dispatch de-

cides what time the trailer will be sent on its way.

In any event, card, backing, and bills fro

dispatch to line-haul haul [sic] dispatch. Cards nay —

ings are placed in a rack at the dispatch clerk’s desk next

to various boards which indicate the availability of drivers.

One of the dispatch clerk’s principal tasks is to summon

drivers to work bv telephone under the first-in first-out

principle as they rise to the top of the list so that each

trailer can leave at its appointed time. The dispatch

clerk’s other major task is to prepare the driver’s trip

card by typing on it all the instructions, such as where he

is going, what he is to do when he gets there, which fuel

stops he is to use, and the like, which the driver needs

for the trip he is being dispatched on. Dispatch clerks

were originally lumped in with dispatchers in Respond-

ent’s and the Union’s dispute over unit. However, the

68a

problem was resolved at the hearing when all parties stip-

ulated that dispatch clerks are rank-and-file employees.

(Dispatch clerks are hourly paid, punch a timeclock, and

do not participate in the bonus plan.)

The line-haul dispatcher’s principal tasks are to get

tractors hooked up to the trailers that are ready for dis-

patch, weigh them, check the trip card prepared by the

clerk, and punch the drivers out when driver, tractor, and

trailer are all ready to go. Punching drivers out and

manning the window are roughly synonymous phrases in

Respondent’s parlance. Both simply mean that the dis-

patcher sits at a window in the line-haul dispatch office,

marks the time of departure on the driver’s trip card,

and hands him his trip card, bills of lading, and any

other material, such as interterminal correspondence or

payrolls, which he is to take with him. Punched out, the

driver leaves Kernersville. A tractor tab is placed on the

trailer card and backing, and all three are handed back

to central dispatch to be placed in the en route line of the

appropriate terminal’s board.

Manning the window on the one hand and manning

the telephone and the typewriter on the other are the

basic difference between the line-haul dispatcher’s and the

dispatch clerk’s jobs. However, in practice, the distinc-

tion is less than sharp, for dispatcher and clerk work as

a team in doing whatever has to be done to get the job

done. When a lot of drivers have to be rounded up at one

time, the dispatcher pitches in with the clerk to make

telephone calls. When a lot of drivers are lined up wait-

ing for their orders, the clerk mans another of the three

windows which open into the line-haul dispatch office and

punches them out. When either one is on break, the other

does whatever has to be done at the time.

When an inbound load of freight arrives at Kerners-

ville, the driver punches in at the line-haul dispatch

office. He leaves the bills of lading for the freight on the

trailer and any other items such as interterminal cor-

69a

respondence he may be carrying. The dispatcher (or the

clerk, if he happens to be manning the window at the

time) marks the time of arrival on the driver’s trip

card and returns it to him. The driver turns it in to the

driver supervisor. Meanwhile, the dispatcher retrieves

the trailer backing from the inbound line of the Kerners-

ville board in the central dispatch office, removes the trac-

tor tab, bundles card and backing with the bills of lad-

ing, and sends them to the warehouse.

Yard drivers known as switchers hook up tractors to

trailers. In carrying out his responsibility to get trailers

hooked to tractors, the line-haul dispatcher determines,

by going into the yard and making a visual check, what

tractors are on the power ready line. He then decides

which tractor is to be used to haul each trailer. In mak-

ing that decision he takes into consideration such things

as whether to use single operation or double, what States

the tractor carries licenses for, the size of the tractor,

and the like. He then issues orders to switchers to hook

a particular tractor to each trailer in time for departure

from Kernersville at the hour specified by central dis-

patch or selected by line-haul dispatch. Once the hookup

is made, the

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