Turner's Express, Incorporated v. NLRB

• Decision Date: 14 March 1972
• Docket Number: No. 71-1760.,71-1760.
• Citation: 456 F.2d 289
• Parties: TURNER'S EXPRESS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

456 F.2d 289 (1972)

TURNER'S EXPRESS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1760.

United States Court of Appeals, Fourth Circuit.

Argued February 9, 1972.

Decided March 14, 1972.

James A. Harper, Jr., Richmond, Va. (Hill B. Wellford, Jr., and Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for petitioner.

Arthur L. Fox, II, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel; Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., N. L. R. B., on brief), for respondent.

Before CRAVEN and RUSSELL, Circuit Judges, and CHAPMAN, District Judge.

CHAPMAN, District Judge.

The employer, Turner's Express, Inc., has petitioned this Court to review and set aside the Decision and Order of the Board issued August 10, 1971, in Case No. 5-CA-5155, reported in 192 N.L.R. B. No. 89. The Board has cross-petitioned for enforcement of its Decision and Order.

The basic issue involves the conduct of two of employer's supervisory personnel, who supported the Union in the election of August 6 and 7, 1969, and whether their actions denied the employees a free and uncoerced opportunity to select a collective bargaining agent. We find that the actions of these two supervisors was such as would tend to coerce employees working under their direction, and the Decision and Order of the Board must be reversed and the Board's cross-complaint for enforcement denied.

The employer is a motor carrier with ICC authority to transport freight in the area from Norfolk, Virginia to New York City. It employs approximately 25 "over the road" drivers, 18 local drivers, (who also load and unload freight) and 8 to 10 men in its shop force. The shop foreman was Garland Tebo and the warehouse foreman was E. W. Robbins. Both of these men were "supervisors" within the meaning of the Act and their advocacy of the Union cause was quite strong and unknown to the employer. The record does not support the Board's finding that they were only "minor supervisors" whose opportunities to affect the employment status of regular employees was so limited that their actions would not undermine the "laboratory conditions"¹ that should surround an election.

Robbins directly supervised the 18 warehousemen and local drivers. He directed loading and unloading and the routing, breaking and sending out of local deliveries. He also checked all shortages and damages to freight. From 4:00 a. m. until 8:00 a. m. each day Robbins served as supervisor of the entire terminal in addition to his regular duties as warehouse supervisor. He had authority to hire temporary employees and set their wages, and recommend them for permanent employment. He also recommended employees for wage increases and as he testified: "I would go to the head office, recommend a raise for the boys and they usually got it. I was very seldom turned down." He had the power to recommend discharge or other disciplinary proceedings against employees and to grant employees time off.

Tebo, as shop foreman, was supervisor over 8 to 10 mechanics, helpers, lubrication and tire men. He was responsible for the maintenance of trucks and the buying of all fuel and repair parts. He recommended hiring and firing, wage increases and could impose certain discipline as well as assign overtime to the men under him.

Robbins and Tebo were supervisors of approximately fifty percent of the employees in the bargaining unit. In the election 32 employees voted for the Union and 22 voted against, with 6 votes challenged and not counted for either side. It is obvious that if the supervisors influenced only 5 or 6 votes in favor of the Union, these votes could change the result of the election.

The Board's designation of Robbins and Tebo as "minor supervisors" is not supported by the evidence or the law.² The Act does not grade supervisors as major or minor. An individual is either a supervisor or an employee. In discussing the position of supervisors and their opportunity to coerce employees over whom they have authority, this Court clearly explained the problem in N. L. R. B. v. Heck's, Inc., 386 F.2d 317 (4th Cir. 1967):

"Such day to day authority over employees provided a basis for potential tyranny when improperly exercised by a supervisor thwarted in his aim to obtain union recognition, and an employee properly could doubt his ability to obtain protection by appeals to higher company authority. Employees who were subject to having their daily work schedules and days off assigned by such supervisors, and who were aware that department heads occupied a more exalted status than the employees, could, thus, well be influenced in their determination to sign a union authorization, irrespective of their knowledge of their employer\'s attitude toward the union, when requested to do so at meetings sponsored by their supervisors. We can only conclude on this record that the participation of the supervisors was sufficient to taint the drive for unionization and that, therefore, absent other proof of the voluntariness of each of the 20 authorizations, the record fails to disclose that the union represented the free and untrammeled choice of the majority of the employees comprising the unit. Whether the employees thought of the department heads as `supervisors\' is irrelevant, because they surely knew who assigned them their daily work loads and who granted them days off."

The law is clear...