# Petition — Chauffeurs, Local Union No. 391 v. Pilot Freight Carriers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2601%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1011 ## Text *r — ee Ot. tiie = ~~ * “tah 777470 || sep 26 877 — 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, V. 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 EE 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 r 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, 13 12,14 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 Iv CITATIONS—Continued Miscellaneous: Davis, Administrative Law Treatise, Vol. 4, L annccccmntnstiiiienseeeni Jaffe, Judicial Review: Question of Law, 69 Harv. Le 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, V. 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. 2 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- 3 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 4 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- 5 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. 6 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). 7 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. 10 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). 11 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. 12 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, 13 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- 14 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. 15 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). 16 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 la 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- 2a 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.” I. 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. 4a 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 5a 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. 6a 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 7a 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). 8a 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 9a 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. (c) Unlawfully threatening to discharge employees 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. 31 (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 perfo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2601%3A1. Public record. Not legal advice.