Pacific Intermountain Express Company v. NLRB

• Decision Date: 13 June 1969
• Docket Number: No. 174-68.,174-68.
• Citation: 412 F.2d 1
• Parties: PACIFIC INTERMOUNTAIN EXPRESS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

412 F.2d 1 (1969)

PACIFIC INTERMOUNTAIN EXPRESS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 174-68.

United States Court of Appeals Tenth Circuit.

June 13, 1969.

Nathan J. Fullmer, Salt Lake City, Utah, for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Herman M. Levy and Jonathan M. Marks, Attys., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before MURRAH, Chief Judge, and PHILLIPS and HILL, United States Circuit Judges.

HILL, Circuit Judge.

This is a petition for review and cross-petition for enforcement of an order of the National Labor Relations Board which determined that Pacific Intermountain Express Company (P.I.E.) was guilty of violating § 8(a) (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. The company maintains that the refusal to bargain was justified because the employees in the bargaining unit, three line dispatchers at the company's Denver terminal, are all "supervisors" within the meaning of § 2(11) of the Act. The Board concedes that if the dispatchers are supervisors then § 14(a) relieves the company of any duty to bargain and constitutes a complete defense to the present unfair labor practice charge.

On April 22, 1968, following a petition for an election filed by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 961, a representation hearing was held to determine the status of the dispatchers under the Act. The Regional Director concluded that the three dispatchers were not supervisors and that they comprised an appropriate bargaining unit. An election was held, the union was certified, and the company denied the union's request to bargain. The union then filed an unfair labor practice charge; the Board granted its General Counsel's motion for summary judgment, basing its decision on the record in the representation hearing. The sole issue is thus whether there was substantial evidence adduced at the representation hearing to support the Board's finding that the dispatchers are employees rather than supervisors.

The company, headquartered in Oakland, California, is a nationwide trucking concern engaged in the interstate transportation of freight. Of the many stations and terminals maintained by the company, the Denver terminal is a major point of departure, employing 38 drivers, various other employees, and three line dispatchers. The dispatchers are under the direct control of dispatcher supervisor Foster who, in addition to hiring and discharging dispatchers, performs the same functions as the other dispatchers.¹ The dispatchers, including Foster, operate in three successive 8-hour shifts so that one of them is in service at all times. Dispatchers are paid a monthly salary, do not punch a time clock, do not receive overtime, are not penalized for occasional absences, receive health and welfare benefits provided for supervisory employees, enjoy the same vacation benefits as supervisory personnel, and participate in managerial supervisory meetings. It is their responsibility to coordinate the operations of drivers, trucks and trailers to ensure the smooth flow of freight through the terminal. To this end the dispatchers call the drivers to work, assign them to equipment, and schedule their departures. Upon the arrival of foreign teams, driver teams permanently located in other terminals, the dispatchers either relieve them of duty or redirect them, depending upon the prevailing freight schedule and in accordance with the terms of the collective bargaining contract governing the conditions of the drivers' employment.

In assigning drivers and scheduling departures, the dispatchers consult projection sheets and lists prepared by others. To determine which drivers to assign, a "board" is prepared by line driver supervisor Travis who prepares the board in accordance with the labor agreement with the drivers. Drivers are listed on the board in order of seniority with the dispatchers consulting the board and assigning drivers on a first-in, first-out basis. If one of the regular drivers is unable to respond to a call, the dispatchers examine the "extra board" and call the driver at the top of the list. Similarly in scheduling departures, the dispatchers follow a projection sheet ordinarily prepared by Foster. This sheet is compiled in conjunction with a daily conference call to Oakland which supplies information as to the units expected to arrive, their anticipated arrival time, and the like. From this information, Foster determines when a freight load must arrive at its destination and indicates the time the load is to be dispatched from Denver. In addition to the aforementioned primary functions, the dispatchers are also called upon to approve drivers' pay claims, grant drivers time off, and suspend drivers appearing for work in an intoxicated or other unfit condition.

Based upon the foregoing facts and in reliance upon Eastern Greyhound Lines, 138 N.L.R.B. 8 (1962), the Board determined that the assigning of drivers and scheduling of departures is routine; that the granting of emergency leave time, approval of pay claims, and suspension of unfit drivers is infrequent; and that, in general, the dispatchers are not called upon to exercise independent judgment. We cannot agree.

Supervisory personnel, as distinguished from general employees, are defined by § 2(11) of the Act to include "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, 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." 29 U.S.C. § 152(11). It is not necessary to evaluate each function performed by the dispatchers since § 2(11) is to be...