N.L.R.B. v. Metropolitan Petroleum Co. of Massachusetts, Div. of Pittston Co., 74-1181

• Decision Date: 11 December 1974
• Docket Number: No. 74-1181,74-1181
• Parties: 87 L.R.R.M. (BNA) 3139, 75 Lab.Cas. P 10,510 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Teamsters Local 25, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor, v. METROPOLITAN PETROLEUM COMPANY OF MASSACHUSETTS, DIVISION OF PITTSTON CO., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 616

506 F.2d 616

87 L.R.R.M. (BNA) 3139, 75 Lab.Cas. P 10,510

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Teamsters Local 25, affiliated with International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, Intervenor, v. METROPOLITAN PETROLEUM COMPANY OF MASSACHUSETTS, DIVISION OF PITTSTON CO., Respondent.

No. 74-1181.

United States Court of Appeals, First Circuit.

Argued Oct. 8, 1974.

Decided Dec. 11, 1974.

Richard A. Cohen, Atty., Washington, D.C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert G. Sewell, Washington, D.C., were on brief, for petitioner.

James T. Grady, Boston, Mass., with whom Grady & Kaplan, Boston, Mass., was on brief for intervenor.

Alan S. Miller, Boston, Mass., with whom Stoneman, Chandler & Miller, Boston, Mass., was on brief, for respondent.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order ¹ to bargain collectively issued against Metropolitan Petroleum Company of Massachusetts, Division of Pittston Co. (hereinafter 'the company'). The Board had certified the intervenor union as the exclusive bargaining representative of the company's dispatchers and clerks employed at its terminal in Chelsea, Massachusetts. The sole issue before us is whether substantial evidence on the record as a whole supports the Board's finding that the dispatchers are employees and not 'supervisors' within the meaning of 2(3) and 2(11) of the National Labor Relations Act, 29 U.S.C. 152(3), 152(11) (1970). ² Since we hold the Board's finding was not supported by substantial evidence, we decline to enforce the order.

The company is engaged in the storage, sale and delivery of heavy and light fuel oil and related products, and serves the Boston metropolitan area from its facility in Chelsea. The company's management personnel include James Cavanaugh, who has overall responsibility for the operation; Paul Kelly, who is responsible for the terminal; John Hill, who is responsible for maintaining a proper fleet; and Walter Anderson, the delivery and dispatch superintendent. Under Anderson are five dispatchers, two of whom direct the distribution of light fuel oil and two of whom distribute heavy fuel oil. The fifth dispatcher is responsible for the night shift and distributes both light and heavy oil. In addition to the dispatchers, the company employs 25 to 30 permanent drivers and 60 to 70 seasonal drivers during the busy winter season.

The two distribution systems function somewhat differently. In the distribution of heavy oil the dispatcher receives orders either directly from the customer or through the company's customer order section in Neponset-- generally at least 24 hours prior to the delivery. The dispatcher then prepares the next day's delivery schedule by assigning men and equipment (either a tractor-trailer unit or smaller 'street' vehicle) to various jobs. Typically the dispatcher commits 70 per cent of his equipment and personnel by this process, while the remaining 30 per cent is held in abeyance to meet contingencies as they develop. Using his knowledge of the experience of the different drivers, the dispatcher decides each day which employees will comprise the 70 per cent and which employees the 30 per cent. If the company's drivers and trucks are all out working and it appears to the dispatcher that the day's deliveries cannot be completed, he must decide, keeping in mind the relative costs and the welfare of the drivers, whether to order company drivers to work overtime or whether to use outside trucks and drivers pursuant to lease arrangements confirmed by Anderson at the beginning of the winter season. The dispatcher can also decide to postpone delivery for a day or more. On the other hand, if more drivers are working than are needed, the dispatcher has authority to assign a driver either to the delivery of light oil or to the plant foreman for work around the plant.

In the distribution of light oil, used almost exclusively in private homes, the company utilizes a 'degree date planning system' which informs the dispatcher how many customers are due for deliveries and who those customers are. These customers are then divided into geographic 'zones,' which are established by Anderson in conjunction with the dispatchers approximately once a year, and these zones are combined to form the 'route' of a particular driver. The combination of zones in a route varies in accordance with the judgment of the dispatcher, and the dispatcher frequently exercises his authority to transfer drivers from route to route or from zone to zone. In establishing the routes, the dispatcher must allocate equipment and drivers to accomplish the deliveries without over-committing company resources or unduly restricting the flexibility to meet contingencies. Thus, for example, the dispatcher must exercise his judgment to rearrange delivery schedules if a home customer with little or no fuel telephones to request an immediate delivery. As with the heavy oil dispatchers, the light oil dispatchers can and do assign overtime. Drivers delivering light oil must telephone the dispatcher in the late afternoon and report their progress. The dispatcher then must decide whether to defer remaining deliveries until the next day or order overtime work.

As winter approaches, the number of men needed to make deliveries increases. The dispatcher makes a determination each week of how many additional men he needs for the following week, and by referring to a seniority list Anderson makes arrangements for the required number of men to be recalled to work. The converse of this process operates in the spring. Since the drivers' contract with the company requires one week's notice to lay off seasonal drivers, the dispatcher has to predict the decline in company needs at least a week ahead of time. The dispatcher's goal is to avoid keeping too many drivers on the payroll, thus raising labor costs, and simultaneously to avoid having too few drivers, thus necessitating overtime labor if delivery requirements are misjudged.

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. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd on other grounds, 401 U.S. 137, 91 S.Ct, 599, 27 L.Ed.2d 735 (1971). The dispatchers' duties as set out above clearly satisfy the first prong of the statutory test for 'supervisors' in that the dispatchers possess the power to 'transfer, . . . lay off, recall, . . . (or) assign . . . other employees, or responsibly to direct them . . ..' 29 U.S.C. 152(11) (1970). However, an individual who possesses one of the statutory powers is a supervisor only if his 'exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.' 29 U.S.C. 152(11) (1970). See Poultry Enterprises, Inc. v. NLRB, 216 F.2d 798, 802 (5th Cir. 1954). Relying on this prong of the definition of 'supervisor,' the acting regional director found the dispatchers' work to be 'a routinely administered responsibility governed by functional experience and established practice.' We...