National Association for the Advancement of Colored People

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Association for the Advancement of Colored People, Employer-Petitioner, and Community and Social Agency Employees Union, District Council 1707, American Federation of State, County and Municipal Employees, AFL-CIO. Case 2 UC 140 March 26, 1979 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS JENKINS ANI) MURPHY On August 31. 1978, the Acting Regional Director for Region 2 issued a Decision and Order Clarifying Bargaining Unit in the above-entitled proceeding or- dering that the existing bargaining unit' be clarified to exclude 12 job classifications as managerial or confi- dential2 and to include the administrative assistant to the general counsel and 8 program directors.3 There- after, in accordance with Section 102.67 of the Na- tional Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely re- quest for review of the Acting Regional Director's decision. Contending that the eight program directors should be excluded from the unit as supervisory or managerial and that the administrative assistant to the general counsel should be excluded as supervisory or confidential, the Employer maintains that the Act- ing Regional Director's contrary findings regarding their status are erroneous and depart from officially reported precedent. By telegraphic order dated November 3, 1978, the National Labor Relations Board granted Employer's request for review only with respect to the eight pro- gram directors' supervisory status.4 In all other re- ' As set forth in the parties' most recent collective-bargaining agreement. effective from January I. 1977. to June 30. 1978. the unit consists of: All of the employees who work in the service of. and are compensated by, the National Office of the Association, excepting the following: Ex- ecutive Director, Assistant D)irectors Director of the Washington Bu- reau. Director of Branches and Field Administration. Assistant Director of Branches and Field Administration. General Counsel Associate General Counsel, Attorneys in the Legal Department. Regional Direc- tors. Directors of Public Relations. Associate Public Relations Director. Director of Office Administration Assistant Office Manager. Editor of The Crisi., the Comptroller, Chief Accountant. I)irector of lHousing. Director of Youth and College Division, )irector of Education, and Director of Labor. 2 The associate director for operations, director of personnel, secretary to the director of personnel, associate director for branch and field services. associate director for programs. director of research, policy and plans, secre- tary to the director of research, policy and plans, executive assistant to the executive director, deputy executive director, secretary to the deputy execu- tive director, administrative secretary to the executive director, and adminis- trative assistant to the comptroller. 3 The eight program directors ordered included are the directors of com- munications, economic development, religious affairs, the emergency relief fund, voter education, armed services and veteran affairs, membership, and life membership. The Board's telegraphic order also granted the Employer's motion to stay the Acting Regional Director's decision insofar as it pertains to the matter under review. spects, the request for review was denied. Thereafter, both the Employer and the Union filed briefs on re- view. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the entire record in this case and makes the following findings: The Employer, a New York nonprofit corporation with its principal office and national headquarters lo- cated in New York, New York, is engaged as a civil rights organization in promoting the elimination of racial prejudice and in seeking to attain equal status for minorities in the United States. The Employer has about 1,700 branch offices located throughout the United States, 7 regional offices, and 30 state affili- ates. There are about 125 employees on a nationwide basis, 80 of whom work at the New York headquar- ters. The parties have had a collective-bargaining re- lationship for over 20 years. The executive director, who is assisted by an execu- tive assistant,s is responsible for the Employer's over- all functioning.6 The next level below the executive director is that given the informal title of "senior staff," comprised of the associate directors of opera- tions, branches and field services, and programs, the general counsel, the director of the Washington Bu- reau, the comptroller, and the director of public rela- tions. Each of the three associate directors is respon- sible for the supervision of a portion of the Employer's operations. All of the eight program di- rectors whose status is disputed here report directly to one of the associate directors. As a result of the Employer's reorganization in Au- gust 1977, 14 new job positions were created. Of the eight program director positions disputed here, three-- the directors of communications, religious af- fairs, and economic development were established by this reorganization and are not now in the bar- gaining unit. The director of communications, Angela Shaw, was hired in January 1978. Shaw is responsible for coordinating programs to identify the treatment of minorities in the electronic media. As the Acting Re- gional Director stated, she is required to review pend- ing Federal Communications Commission legislation, to meet with various professional organizations in the communication field, to prepare and submit recom- ' It is projected that a deputy executive director will also be hired, a posi- tion that is not yet filled. ' The Employer's 64-member board of directors meets quarterly and has the authority to "establish major administrative and other policies concern- ing the affairs of the Association." A subordinate 15-member executive com- mittee meets monthly and is empowered to "decide such matters of policy as may arise between regular Board meetings." 241 NLRB No. 52 430 NATIONAL. ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPIE mendations on communications policy to the execu- tive director and the board of directors for approval, to testify before regulatory agencies, to submit travel and monthly activity reports to the associate director for programs, and to draft press releases relating to the area within her charge subject to review by the associate director for public information. Like all program directors, Shaw has a secretary who performs all required typing. The record indi- cates that the hiring of clerical employees is the re- sponsibility of director of personnel, William Penn. After recruiting, interviewing, and testing all clericals, Penn initially determines an applicant's fitness for a particular department. Once selected, however, all clerical personnel must successfully complete a 1- month probationary period. All program directors, including Shaw, are required to submit performance appraisals of the clericals in their respective depart- ments for the probationary period. According to Penn's uncontradicted testimony, the program direc- tor's evaluation would be the "determining factor" as to whether or not the clerical employee would remain in the department. Penn elaborated that after a bad evaluation from a program director, the clerical em- ployee would be "automatically terminated from that particular department" although personnel might have the clerical transferred to another department rather than have the employee terminated.7 In light of Penn's undisputed testimony, we must disagree with the Acting Regional Director's finding that the evalu- ations "have no substantial and immediate impact on the secretary's employment." Penn also testified, without contradiction, that each program director, including Shaw, has the authority to authorize overtime for the person he or she super- vises. According to Penn, the program directors au- thorize overtime on their own without the prior or subsequent approval of the personnel department. Unlike the other program directors, Shaw has an assistant director. The assistant reports directly to Shaw and receives assignments from her. The asso- ciate director for programs, Kenyon Burke, who ad- ministratively supervises Shaw and the communica- tions department, explained that he hired Shaw and her assistant, both of whom started at the same time. Burke added, without contradiction, that had Shaw "already been in place, then she would have hired the Assistant." This authority was not discussed by the Acting Regional Director. The director of religious affairs is Reverend Julius Caesar Hope. His function is to develop programs to 7 Program directors are also responsible ftor submiltting annual evaluations of the clerical within their respective departments At the time of the hearing which was held in late Ma) and early June 1978, the annual ealuation forms were being revised and Penn had notl ?et received an annual evalu- ation in his capacit\ as director of personnel. Penn assumed that position in October 1977 involve religious bodies in the Employer's policies and programs. Like other program directors, Rever- end Hope administers his own budget, travels exten- sively, and submits monthly activity reports. He has a secretary and he reports to the associate director for programs. Director of Personnel Penn's uncontra- dicted testimony regarding the program directors' re- sponsibility to evaluate clericals within their depart- ments and to authorize overtime applies to Reverend Hope as well. The new position, director of economic develop- ment, was not filled at the time of the hearing. This director's responsibilities will require the develop- ment of programs identifying the factors behind mi- norities' economic problems. The position will also require reviewing economic legislation, preparing economic analyses, meeting with officials of regula- tory and legislative bodies, and giving technical as- sistance on economic issues when requested. The di- rector of economic development will report to the associate director for programs and will have a bud- get and a secretary. According to Penn's testimony, this director will also evaluate the secretary within the department and authorize overtime. The five remaining positions at issue here, the pro- gram directors of the emergency relief fund, voter education, armed services and veteran affairs, mem- bership, and life membership, are presently included in the unit. Penn's testimony regarding the program directors' responsibility to evaluate clerical employees within their respective departments and to authorize overtime is not refuted as to any of these directors. The director of the emergency relief fund, Carolyn Coleman, works in the Atlanta regional office and is one of two program directors at issue here who does not work at the New York headquarters. Coleman is responsible for administering the program from which limited financial assistance, $10 to $150, is pro- vided to persons in need. The program services Mis- sissippi, North Carolina, South Carolina, and Geor- gia. Coleman processes requests for assistance, decides whether there is need based upon guidelines devised by the Employer, and forwards the applica- tions and checks to the associate director for opera- tions in New York for her signature and approval. She also counsels families on nutrition and economic problems, assists in fund raising. conducts workshops on poverty and nutrition issues, and requests and dis- tributes funds in disaster or other emergency situ- ations subject to the approval of the associate director for operations or the executive director. Like other program directors, Coleman travels extensively, has a budget. submits monthly activity reports, and has a secretary. The director of voter education, W. C. Patton, is responsible for increasing voter registration in areas 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a heavy concentration of the unregistered black voters, encouraging and motivating people to vote, and monitoring the voting records of elected officials. Patton administers a budget of about $40,000; identi- fies the election districts where voter education cam- paigns are to be conducted based upon his review of voting records, population studies, and other electoral information; decides which groups will receive grants and the amount of the grant for voter registration drives; directs voter registration campaigns relying upon his knowledge and experience; conducts work- shops on voter education of the Employer's various regional and state association meetings as well as the national convention; meets with elected officials and representatives of organizations interested in voter registration; prepares literature and other material; submits monthly reports to the associate director for programs; and is directly accountable to the comp- troller for his disbursements. Patton's office is in Bir- mingham, Alabama, and he has a secretary, a unit position, who performs all his clerical work. In con- nection with voter registration campaigns, Patton has, on occasion, hired temporary campaign workers.8 Julius Williams, the director of armed services and veteran affairs, is responsible for processing inquiries and complaints from active and inactive minority ser- vicemen relating to discriminatory treatment in the military and to problems with the Veterans Adminis- tration. He reviews legislation, visits military installa- tions and veterans service-related organizations, meets with the Employer's veterans committee mem- bers, and prepares statements and recommendations subject to management approval. He also develops programs subject to the approval of the associate di- rector of programs. In addition, the Pentagon has used him to resolve racial conflicts within military bases. Williams has a budget and an expense account and, like the other program directors, he has a secre- tary who performs all of his clerical work. At the time of the hearing, the director of member- ship had been vacant since March 13, 1978, and the director of life membership was held by Edward Muse. Their job functions are similar. Both positions report to the associate director for branch and field services and require the submission of monthly re- ports of their activities. The director of membership works in the New York headquarters with four clerical employees, the supervisor of typing and processing, and three other clericals. Although the supervisor of typing and pro- cessing, a unit position, generally oversees the work of the remaining three clericals, the director has similar responsibility to that of other program directors to 8 As the Acting Regional Director stated, the record neither indicates the "frequency or scope" with which temporary workers have been used nor whether they are bargaining unit members. evaluate the clerical employee within the membership division and to authorize overtime. The director of membership is also responsible for developing and co- ordinating the Employer's membership campaign in consultation with and subject to the approval of the associate director for branch and field services. In this regard, the director develops materials for use in the Employer's 1,700 branch offices and youth units, con- ducts membership workshops and campaigns, and travels extensively. The membership director also processes new and renewal membership reports and maintains current membership lists. The responsibilities of the director of life member- ship, Edward Muse, are basically comparable except that his duties involve generating life members, cor- porate life members, and golden heritage life mem- bers.9 Subject to the approval of the associate director for branch and field services, Muse develops and co- ordinates life membership campaigns for the Employ- er's 1,700 branches and 30 states associations, solicits and processes life memberships, keeps records of the various categories of life memberships, conducts membership workshops, and meets with corporate and other organizations to stimulate life member- ships. Like other program directors, Muse has a secre- tary and his division also is assigned three other cleri- cal positions which were unfilled at the time of the hearing. On these facts, especially considering the director of personnel's uncontradicted testimony that the pro- gram directors have the responsibility to assign over- time and to give performance appraisals for their clericals which, at the very least, can affect the cleri- cals' tenure of employment within their respective de- partments, we find that the eight program directors are supervisors within the meaning of the Act and we shall clarify the unit to exclude their job classifica- tions as well as those already excluded by the Acting Regional Director.'0 In making this determination, we also note that the eight program directors in ques- tion are the highest ranking employees in their respec- tive departments and that their inclusion in the unit would therefore leave no on-the-spot supervision over clerical employees in eight of the Employer's depart- ments-all of which reinforces our conclusion." 9 Life members are persons who have contributed at least $500: corporate life members contribute at least $2.500: and golden heritage life members contribute at least $1,000. 10 Also unrefuted was the associate director for programs' testimony that Director of Communications Shaw has the authority to hire her assistant in the event of a vacancy. 1I Regarding the directors of voter education and the emergency relief fund whose respective departments are located in Birmingham, Alabama, and Atlanta, Georgia, and thus remote with respect to the New York head- quarters. a contrary finding would lease them and their clencals without immediate supervision. 432 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE ORDER It is hereby ordered that the unit of employees cov- ered by the collective-bargaining agreement between the National Association for the Advancement of Colored People and Community and Social Agency Employees Union, District Council 1707, American Federation of State, County and Municipal Employ- ees, AFL-CIO, be clarified to exclude not only the classifications of associate director for operations, di- rector of personnel, secretary to the director of per- sonnel, associate director for branch and field ser- vices, associate director for programs, director of research, policy and plans, secretary to the director of research, policy and plans, executive assistant to the executive director, deputy executive director, secre- tary to the deputy executive director, administrative secretary to the executive director, and administrative assistant to the comptroller, but also to exclude the director of communications, director of economic de- velopment, director of religious affairs, director of the emergency relief fund, director of voter education, di- rector of armed services and veteran affairs, director of membership, and director of life membership, and to include the classification of administrative assistant to the general counsel. CHAIRMAN FANNING, dissenting: I would adopt the Acting Regional Director's Deci- sion and Order clarifying bargaining unit for reasons stated by him. 433