Association Canado-Americaine

In the Matter of ASSOCIATION CANADO-AMERICAaNE, EMPLOYER and UNITED OFFICE & PROFESSIONAL WORKERS OF AMERICA, CIO, PETITIONER Case No. 1-R-3962.-Decided February 11, 1947 Mr. Ernest R. D'Amours, of Manchester, N. H., for the Employer. Sheehan, Phinney cC Bass, of Manchester, N. H., by Mr. W. L. Phinney, and Mr. James L. Whitehouse, of Boston, Mass., for the Petitioner. Mr. Henry W. de Kozmian, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Man- chester, New Hampshire, on September 12, 1946, before Julius Kirle, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE EMPLOYER Association Canado-Americaine is a non-profit fraternal benefit society admitting to membership only persons of French descent and of Catholic creed. It operates pursuant to a special charter from the State of New Hampshire and its principal office is in Manchester, New Hampshire. It has a total of 285 lodges and 35,000 members dis- tributed throughout the New England States and also in the Province of Quebec, Canada. Of these 35,000 members, approximately 14,000 are in the Province of Quebec, Canada, and approximately 12,000 are in States of the United States other than the State of New Hampshire. The Employer issues various kinds of benefit certificates to its mem- bers and the face value of its outstanding certificates at the time of the hearing was approximately $25,000,000. The Employer's total 72 N. L R. B, No. 97. 520 ASSOCIATION CANADO-AMERICAINE 521 assets are valued in excess of $4,000,000, consisting principally of stocks, bonds, and FHA mortgages. The Employer issues benefit cer- tificates to its members directly from its office in Manchester, New Hampshire, and part of the premiums paid by members are trans- mitted to the principal office in Manchester, New Hampshire. A 25 cents per month per capita tax is likewise collected by the principal office in Manchester, New Hampshire. During the year ending June 30, 1946, the Employer purchased and sold securities valued in excess of $1,500,000. During the same period, the Employer received premiums in the amount of $596,027.42, and paid to members $317,811.91 in benefits. And during this time the Employer paid approximately $18,000 to its full-time organizers as salaries and commissions, while in 1945, the Employer paid approxi- mately $40,000 in commissions to its part-time organizers. In the Polish, National Alliance case,' the Supreme Court held that the operations of a company, substantially identical to those of the Employer except for their size, affected commerce within the meaning of the National Labor Relations Act. In the light of the extent of the Employer's operations, we find no merit in the Employer's con- tention that the doctrine of de minimis is applicable and that the Board, therefore, is without jurisdiction 2 We find, contrary to the Employer's contention, that its operations affect commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations , claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties agree generally that the appropriate unit should consist of all the office and clerical employees of the Employer's Manchester, 1 322 U. S. 643 2 See N. L. R. B. v . Faanblatt, 306 U. S. 601 , 607; N. L. R. B. v. Suburban Lumber Co., 121 F. ( 2d) 829 (C. C. A. 3). 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now Hampshire, office, excluding all supervisory employees. There is disagreement, however, as to four specific employees. The Peti- tioner would exclude as supervisory employees Walden Gelinas, classi- fied as an accountant, Gaudius Hibert, classified as assistant to the secretary-general, and Gerald Robert, classified as a supervisor of reports and commissions, while the Employer would include them in the appropriate unit. Furthermore, the Petitioner would exclude and the Employer would include George Houle, classified as office messenger. Walden Gelinas and Gaudius Hibert: Walden Gelinas is in charge of the accounting department, and about six employees work under him. He transmits the orders of the office manager to these employ- ees, assigns their work to them, supervises its execution, and corrects their mistakes. Gaudius Hibert is the assistant to the secretary-general and substi- tutes for him in his absence. He signs checks and dictates letters for the secretary-general. About seven employees, charged with handling the correspondence of the Employer, work under him. Like Gelinas, he transmits orders to these employees, assigns work to them, super- vises its execution, and corrects their mistakes. While there is no direct evidence that Gelinas and Hibert exercise supervisory authority, we believe that there are sufficient indicia of supervisory authority as to both to warrant their exclusion from this non-supervisory unit. Thus, their salaries are more than double the salaries of the highest paid employees working under them, and they are considered to have supervisory authority by employees of the Em- ployer. They supervise the work of the employees under them and are presumably responsible for its efficient execution. Also, they are called in for consultations with the office manager. Since the office manager is the only employee above them in the Employer's super- visory hierarchy, and there are approximately 34 clerical employees, we believe that any recommendations they might make affecting the status of employees would be given considerable weight. Moreover, there is evidence that at different times Gelinas and Hibert were each in charge of the entire office. Accordingly, we shall exclude Walden Gelinas and Gaudius Hibert from the appropriate unit .3 Gerald Robert: Gerald Robert is in charge of the reports and com- missions department, and has approximately six employees under him. His supervisory authority would appear to be substantially the same 'See Matter of A S. Campbell Company, Inc., 71 N L. R. B 753; Matter of Jasper Wood Products Company/, Inc., 63 N. L. R. B. 333. ASSOCIATION CANADO-AMERICAINE 523 as that of Gelinas and Elbert.' Moreover, Robert is the son of the Employer's president and this fact alone is sufficient to justify his exclusion from the unit, since his interests differ from those of other employees.', Accordingly, we shall exclude Gerald Robert from the appropriate unit. George Houle: George Houle is classified as an oflice messenger, but it would appear from the record that he is more of a general utility employee. A substantial portion of his time is devoted to acting as a_ chauffeur for the officers of the Employer. He also wraps books, which are to be mailed, moves typewriters, and runs errands in the office. Occasionally, he sweeps the office and helps the cleaning woman. He does no filing whatsoever. He has a desk in the base- ment apart from the clerical employees. Houle testified that lie does not consider himself to be a clerical employee. We find that Houle's duties differ from those of the office employees, and we shall, therefore, exclude him from the appropriate unit. We find that all office and clerical employees of the Employer's office in Manchester, New Hampshire, excluding George Houle, Gerald Robert, Walden Gelinas, Gaudius Elbert, executives, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes In the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (h) of the Act. V. THE DETERMINATION OF REPRESENTATIVES Although the Petitioner requests in its brief that it be certified on the record,- we believe that the question concerning representation which, has arisen should be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Association Canado-Ameri- caine, Manchester, New Hampshire, an election by secret ballot shall be conducted as 'arly as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the First Region, acting in this matter 4 Robert, however, works irregularly , inasmuch as he is a professional organist and his two occupations sometimes conflict Therefore, he is paid by the hour rather than by the week, as are the Employer 's other clerical employees 5 Matter of The Myers-Sherman. Company, 71 N. L. it. B 910. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid-off, and in- cluding employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by United Office & Professional Workers of America, CIO, for the purposes of collective bargaining.