Knights of Columbus

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent having discharged Robert B . Unger because of his union activities, I recommend that Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges . Since, the record reveals, waiters received no wages from Respondent, but did receive trips which are regarded as their salary or pay, I recommend that Respondent make him whole for any loss of such salary or pay he may have suffered by reason of Respondent's discrimination against him by a payment to him of a sum of money equal to that which he normally would have earned as tips,33 from the date of his discharge, July 6, 1959, to the date when, pursuant to the recommendations herein contained Respondent shall offer him rein- statement, less his net earnings during said period. This record permits no firm conclusion as to possible seasonal variations in earnings . Under these circumstances, I recommend that the determination of salary or pay (tips ) should be based upon the weekly average of tips of Robert B. Unger during the 12-month period im- mediately preceding his discharge .34 Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated . I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Robert B. Unger, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in, and activities for, the above-named labor organization, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coercion," to the extent therein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. (Recommendations omitted from publication.] 'I T. A. O'Donnell, 55 NLRB 828. u Patriarca Store Fixtures, Inc., 12 NLRB 93. Knights of Columbus and Office Employees International Union, AFL-CIO, Petitioner. Case No. 1-RC-3913. September 19, 1960 SUPPLEMENTAL DECISION AND ORDER CLARIFYING CERTIFICATION On May 6, 1955, following a Board-directed election,' Office Em- ployees International Union, AFL-CIO,2 was certified as the collec- tive-bargaining representative of all clerical employees including 3 The Board's Decision and Direction of Election was not reported in published volumes of Board decisions. f Office Employees International Union, AFL-CIO, with Its Local 329, which it desig- nated to represent these employees, are herein called Petitioner. 129 NLRB No. 11. KNIGHTS OF COLUMBUS 77 clerk-typists, stenographers, bookkeepers, key punchers, photostat operators and helpers, insurance underwriters, insurance correspond- ents, filing clerks, messengers, mailing employees, and fieldmen, but excluding part-time employees, confidential secretaries, and super- visors as defined in the Act. On February 24, 1960, the Petitioner filed a motion to clarify bargaining unit in which it requested the Board to determine whether the six classifications discussed below are supervisory and, thus, not within the certified unit. On April 5, 1960, the Board issued an order remanding the proceeding to the Regional Director for a hearing on the motion. On June 7, 8, and 15, 1960, a hearing was held before Ernest Mod- ern, hearing officer. The hearing officer's rulings are free from pre- judicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers herein to a three-member panel [Chairman Leedom and Members Jenkins and Fanning]. Upon the entire record, the Board finds : At the hearing, the Employer filed a written motion to dismiss on the grounds that issues raised by the Petitioner are not properly before the Board because (1) there is no lack of clarity in the unit, and (2) there is no dispute regarding the supervisory status of the six classifications involved. As to (1), the unit placement of the classi- fications in question was not litigated in the original proceeding in this case and there is no specific reference to them in the unit descrip- tion. As to (2), the Employer contends these employees are super- visors and should be excluded from the unit while the Petitioner contends they are not supervisors and should be included.' We therefore find a dispute exists regarding the composition of the appropriate unit for which the Petitioner is the certified representa- tive and that the motion for clarification thereof is properly before the Board. The motion to dismiss is therefore denied. I In 1956, after the certification, a survey was made of all jobs in the unit by a management consultant firm pursuant to an agreement between the Employer and the Petitioner. The survey resulted in job descriptions which were accepted by the Employer for the establishment of labor grades for pay purposes. The jobs here in dispute were classified as clerk general B, assistant division head, chief clerk new insurance, file clerk tracer A, supervisor benefit certificates, and supervisor keypunch. All were included by the Employer and the Petitioner in the unit. In December 1958, the Employer gave new job titles to these classifications and proposed that they be excluded from the unit be- cause of subsequently acquired supervisory authority. The Petitioner conditionally agreed to this proposal but in April 1959 questioned whether these employees should be excluded from the unit, and proposed that the matter be arbitrated, a proposal which the Employer rejected. Since that time, the parties have failed to reach agreement on the unit placement of these employees. We find, contrary to the Employer, that the Petitioner did not waive its claim, here presented, that these employees are not super- visors, either by its conditional acquiescence in the Employer's 1958 proposal or by its agreement to the incorporation in the 1960 collective-bargaining agreement of a provision recognizing the Employer's right "to add to the duties sufficiently to bring [an unspecified] 11 job under the act relating to Supervisors .. . 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have found the Employer's objections to the proceeding to be without merit, we shall consider the unit placement of the classifica- tions in dispute 4 Supervisor, insurance receiving division, insurance membership de- partment (Margaret Dundon) : There are 14 employees in this divi- sion classified as clerks, flex-o-writer operators, keypunch operators, teletype operators, typists, and photostat machine operations. These employees receive all new applications for insurance, review them for omissions and mistakes, put code numbers on the applications, tran- scribe information from applications to IBM cards, and make up files on each for transmission to the medical department. Chief, insurance adjustment division, insurance membership depart- ment (Joseph Donarum) : There are 37 employees in this division, all classified as clerks. They make changes in beneficiary designations, settlement agreements, and other changes on insurance policies. Supervisor, new insurance applications processing division, insur- ance membership department (James Mulvey) : There are 14 employees in this division classified as file clerks, typists, rate clerks, preedit IBM card employees, membership review clerks, and utility clerks. The division receives applications from the medical department, ascertains whether the applicant qualifies as an insurance member, and makes final review of notices to be sent to applicants. Supervisor, filing division, insurance membership department (Fred Donarum) : There are 13 to 17 file clerks in this division who file applications after they have been processed. Supervisor, benefit certificate issuing division, insurance member- ship department (Dorothy Haggerty) : There are 14 employees in this division, classified as clerks, typists, and checkers. They receive applications from the new insurance applications processing division, designate changes in beneficiary or plan on certificates, and issue certificates. Head, keypunch division, tabulating department (Nora King) : There are 19 employees in this division classified as keypunch, verifier, and interpreter machine operators. They punch information on IBM cards from adjustment documents. The record shows that each of the above division heads is responsible for the flow of work in his or her division. In furtherance thereof, they assign and reassign the work of the division to the employees 4 In resolving the unit questions here presented, we have not relied on the 1956 job descriptions referred to in footnote 3, which were submitted by the Petitioner with its 'notion to clarify bargaining unit, for the following reasons • As stated above , the sole purpose of those job descriptions was to classify all jobs into labor grades for pay pur- poses. They were derived solely from interviews with employee incumbents at the time, and the duties and job titles have both been changed . We base our findings herein on the testimony at the hearing of management representatives, employees , and the present incumbents of the disputed jobs, all of whom appeared and testified as to the present duties and supervisory authority of these positions INYO LUMBER COMPANY OF CALIFORNIA 79 therein, and shift employees from one job to another for the purpose of speeding up the work or allocating work priorities. They spot check the work of employees in their divisions for accuracy, answer their questions, and instruct them in their duties. A minor portion of the division heads' time is spent in personally handling unusual cases. They are responsible for the maintenance of discipline in their divi- sions, and administer verbal reprimands for improper conduct. In addition, they make effective recommendations to their department head as to whether probationary employees are to be retained on a permanent basis, and are paid substantially more than any of the employees in their divisions. In view of the fact that the authority exercised by the above-named division heads in directing the work of their divisions is not of merely routine or clerical nature but requires the use of independent judg- ment,' as they have the authority to make effective recommendations, and on the record as a whole, we find that they are supervisors within the meaning of Section 2(11) of the Act. We shall, therefore, ex- clude them from the certified unit. [The Board clarified the certification by specifically excluding, in the description of the appropriate unit, the following classifications : In the insurance membership department-supervisor, insurance re- ceiving division; chief, insurance adjustment division; supervisor, new insurance applications processing division; supervisor, filing di- vision; and supervisor, benefit certificate issuing division; in the tabulating department-head, keypunch division.] G Sears, Roebuck and Company, 127 NLRB 582 ; Mt. Clements Metal Products Company, 126 NLRB 1297, footnote 4. Inyo Lumber Company of California and General Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 982, Petitioner Inyo Lumber Company of California and Eastern Sierra Timber Workers Association, Petitioner and Lumber and Saw Mill Workers Union, United Brotherhood of Carpenters and Joiners of America.2 Cases Nos. 20-RC-4204 and 20-IBC-4234. Septem- ber 20, 1960 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 1 The Employer's name appears as amended at the hearing. 2 Lumber and Saw Mill Workers Union, United Brotherhood of Carpenters and Joiners of America , herein called Carpenters , was permitted to intervene at the hearing on the basis of a separate showing of interest. 129 NLRB No. 13.