Ohio State Legal Services Association

DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD Ohio State Legal Services Association and Ohio State Legal Services Association Employees Union,' Peti- tioner. Case 9 RC-12286 December 6, 1978 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN FANNING AND Mi MBERS PENFI. lO AND) ITR tlSi)AI I Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in Columbus, Ohio, on December 16, and 21, 1977, and January 10, February 13 14, and March 14 15, 1978, before Hearing Officer James E. Horner of the National Labor Relations Board. Pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Procedure. Series 8, as amended, this case was transferred by the Regional Director for Region 9 to the National La- bor Relations Board for decision. The Employer filed a brief. 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 Hearing Officer's rul- ings made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is a nonprofit corporation orga- nized under the laws of Ohio. It is the grantee and administrator of three separate and segregable grants, which support the activities of the Ohio State Legal Services Association (OSLSA). Food Action Community Education Project (FACE), and South- eastern Ohio Legal Services Project (SEOLS). 2 The Employer contends that each of these funding projects is a separate employer and that since the Employer named in the petition, OSLSA, when con- sidered alone, has an annual gross revenue of less than $250,000, the Board should decline to assert ju- risdiction based on its decision in Camden Regional Legal Services, Inc., 231 NLRB 224 (1977). This argu- ment is without merit. OSLSA, which is the only in- corporated legal entity of the three, has the same board of trustees as the other projects. Its own opera- The name of the Petitioner appears as amended at the hearing. Each project will be referred to by its acronym OSLSA will be used to designate those of the Employer's employees whose activities are primaril 5 funded by grants other than those suppor ting FACE and SEOI.S The three projects together will be referred to as the }(mploer tions are partially supported by the funds for SEOIS and FACE, to the extent that OSLSA's staff and ser- vices are utilized by SEOLS and FACE. Moreoever, OSLSA is not only the legal grantee for all the pro- grams, it also retains tight managerial, administra- tive, and supervisory authority over the other pro- jects. Thus, we conclude that OSLSA is the Employer for the employees in all three projects. The aggregate of the grants supporting the Em- ployer's three programs is well over $250,000, with almost all of the funds coming from the Legal Ser- vices Corporation and the Community Services Ad- ministration. In addition, during the 12 months pre- ceding the filing of the petition, the Employer has spent approximately $13,800 for lawbooks from pub- lishers outside the State of Ohio. $9,000 for office supplies from a New York concern, and between $2,000 and $2,500 or malpractice insurance from an out-of-state carrier. Thus, the Employer's operations clearly have a substantial effect on interstate com- merce so as to establish the required statutory juris- diction and an annual gross revenue sufficient to meet the Board's discretionary jurisdictional stan- dard for law firms and legal assistance programs. See Wayvne Countrl NciShhorhood Lgal Services. Inc.. 229 NLRB 1023 (1977); Camreden Regional lengal Senrvices, Inc., supra. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Ohio State Legal Services Association Em- ployees Union is an organization within the meaning of Section 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.' 4. The appropriate unit: The Employer's head- quarters is located in Columbus, Ohio, and houses the offices of OSLSA and FACE, where approxi- mately one-half of the employee complement works. The remaineder of the employees are distributed throughout the various SEOLS area offices. There are four main offices servicing discrete geographical areas in Ohio. The offices are located in Zanesville. Chillicothe. Portsmouth, and New Philadelphia. Due I he iEnplhoer algues that a iaucstion conc:rning representation does not exist because there wails no showing of Interest for the Pelitioner narnied In the petition I he hasis for this contention is that Iwo I.ttorne -emplosees entered their ilamnes in the space ,in the pelition reserted for the Peltitioner' name while Ihe a.lcompanilng authoriiatiuon cards establishing the showsing lf interest were made out in the name of OfSI S ' F .A(CE SfOIS Employ- ees U nion We find thrit the underlying letitllner was the same throughout and that the subsecquent rnmeidnient of Ihe liarie ilf the Petitloner cured ant error In the fornial petitiomn %ithluit prelpIadc toi the I mployuer In an -re- ..p~ci 594 OHIO STATE LEGAL SERVICES ASSN. to the size of its area, the New Philadelphia office also maintains satellite offices. OSLA's functions include initiating litigation with law reform consequences for the poor, providing backup legal expertise for legal aid groups in Ohio, lobbying on legislative matters concerning the poor, working with community groups on issues related to OSLSA's mandate, and administering and supervis- ing the FACE and SEOLS projects. The FACE grant funds a three-person operation which provides advo- cacy and education services in the area of Federal food programs. SEOLS provides routine legal ser- vices to the poor population in certain counties in Ohio. The Petitioner seeks to represent the professional and nonprofessional employees in all of the Employ- er's offices. The Employer contests the appropriateness of the scope of that unit and the unit placement of some of the employees. A. The Scope of the Unit The Employer contends that the petitioned-for unit is inappropriate and that the only appropriate units would be ones limited to the Employer's indi- vidual offices. The Employer cites three factors to support its position: (1) the distance between the of- fices; (2) the lack of interchange among the employ- ees working at the different offices; and (3) the dif- ferent working conditions and supervision of the employees at each location as a result of the autono- mous authority of the managing attorneys in the lo- cal offices. We reject the Employer's contention and conclude that there is sufficient homogeneity among the employees in all the Employer's offices to war- rant finding that the petitioned-for unit constitutes an appropriate unit. Despite the substantial distances between some of the offices and the infrequent interchange of employ- ees, the record clearly demonstrates that the employ- ees share a community of interest. They are subject to the same overall labor relations and personnel pol- icies. There is one personnel manual which applies to all the offices and establishes uniform rules and ben- efits, inter alia. those concerning health benefits, malpractice insurance, vacation leave, sick leave, breaktime, grievances, etc. Moreover, the decision- making authority' in almost all personnel matters of importance, such as hiring, firing, discipline, and promotions, rests in the main office. Even the consid- erable discretion of the individual office or project in professional matters is monitored by the top hierar- chy in Columbus. Elaborate computer printouts are used to evaluate case management in all the offices. and policy decisions on legal issues are made after consultation with the main office. Based on the above and other similar evidence in the record, we conclude that the employees work un- der similar conditions (as defined in the personnel manual), receive the same benefits, and have the same overall supervision, especially as it relates to their initial employment, promotion, discipline, and. ultimately, tenure with the Employer. Accordingly, we find that a unit including the employees at all the Employer's locations is appropriate. The Employer's professional employees must, of course, be accorded a separate vote as to whether they' wish to be includ- ed in the overall unit, as mandated by Section 9(b)(1) of the Act. B. The Composition of the Unit The Employer has approximately 50 employees, 21 in the Columbus office and 29 in the SEOLS offices. The top managers are Martens, the executive direc- tor; Baker, the assistant director; Friedman, the di- rector of litigation; and Schmidt, the office adminis- trator. Martens and Baker supervise all of the Employer's operations. Friedman is concerned pri- marily with overseeing the litigation matters, and Schmidt runs the Employer's entire support staff. Of the remaining 17 employees in the Columbus office, 8 perform support tasks and 9 are involved in law- related activities. Those latter employees include the three FACE employees: Weinberg, the project direc- tor; Giraham, the project coordinator; and Cooper, the project assistant; the two legislative lobbyists, Mapes and Miller; and a legal section which consists of Mullinax. another attorney, and two law clerks. The support staff includes three secretaries, one of whom is assigned to the FACE project; an adminis- trative secretary, Maddamma; two clerks; an ac- counting specialist, Plummer; and an accounting clerk. In each of the SEOLS offices there is a manag- ing attorney, three or four staff attorneys, and two or three support staff,4 including one administrative sec- retarN. The parties agree that the professional comple- ment should include the staff attorneys, with one ex- ception, and the law assistants who have graduated from law school but are not yet admitted to the bar. The Petitioner would also include Mapes, the staff attorney who is the legislative lobbyist, and Plum- mer, the accounting specialist. We agree with the Employer's contention that em- ployees Plummer and Mapes should be excluded from the group of professionals. Although Plummer 4 In the Ne, Philadelphi; office. there Is a larger ,upporl staff due to the slatellite offices 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the Employer's accounting specialist, she does not have a college or accounting degree, and there is no evidence that such is a job requirement. Accordingly, we find that she does not qualify as a professional. With respect to Mapes, he is an attorney and, as a lobbyist, apparently utilizes his professional expertise in the performance of his job. Nevertheless, his pro- fessional training is not a requirement of his job. His duties do not differ substantially from those of the other legislative lobbyist, Miller, who has not com- pleted law school. Accordingly, we find that, in his capacity as a legislative lobbyist, his professional training is not a job requirement and thus he does not qualify as a professional employee. Remaining for consideration is the unit placement of the following employees, who the Employer con- tends should be excluded from the unit: Mullinax, a senior staff attorney; Weinberg, the FACE project director; Mapes, the staff attorney-lobbyist; Miller, the legislative lobbyist; the administrative secre- taries; Plummer, the accounting specialist; the Re- gional Heber Smith Fellowship recipient; 5 and a de- moted managing attorney, John Smith.6 Mullinax, Weinberg, and Mapes The Employer contends that these employees are supervisors and/or managerial employees. Since the evidence proffered in support of this contention is related, we will consider the status of these individ- uals together. Mullinax is the Employer's acknowledged expert in welfare law. His responsibilities as senior staff at- torney include consulting on substantive legal mat- ters, initiating and assisting in law reform litigation, working with community groups concerned with wel- fare rights, and providing backup legal support to the two paralegals in the FACE project, Graham and Cooper, who represent individuals in administrative "fair hearings." 7 Friedman is his immediate super- visor. The Employer contends that those duties in- 5This attorney, referred to as the "Reggie," is paid by funds from a fellowship foundation administered by Howard University, which under- writes the salary of legal aid lawyers throughout the country. Although previously the Employer used "Reggies," none was working for the Em- ployer at the time of the hearing, and there was evidence that the Employer has ilot applied for one in the near future. Thus, we will reserve our decision on the Employer's contention that because of the outside funding source the "Reggie" is not an employee of the Employer. 6Smith was the former managing attorney for the New Philadelphia of- fice and before the hearing was demoted to a status of unclear dimensions pending the final disposition of the disciplinary action against him. Since both the nature of his position and his tenure with the Employer are uncer- tain, we will also reserve our decision as to his placement in the unit and will allow him to vote in the election in the professional group subject to challenge. "The 20 percent of Mullinax's salar', that is paid for b? FACE funds reflects the percentage of his time that he works for the project as its legal advisor. clude the supervision and evaluation of the FACE paralegals, involvement in the hiring process, partici- pation in the Friday morning "management" meet- ings, and independent power to establish the Em- ployer's policy on welfare matters. The record, however, reveals that the Employer's characterization of Mullinax's authority is exaggerat- ed. As described by Mullinax and the two paralegals he directs, Graham and Cooper, his relationship with them is merely advisory, although as a matter of form he is the attorney of record in many of their cases and has ethical responsibilities which flow from that status. Both Graham and Cooper essentially op- erate on their own, seeking Mullinax's advice and judgment when they have problems, particularly le- gal questions, in areas within his expertise. Thus, Mullinax's direction of the paralegals is merely inci- dental to his professional role as the attorney for the FACE project and is not the exercise of supervisory authority.8 Mullinax's comments on one of Graham's evalua- tions are also not indicative of any supervisory au- thority. Rather, this participation in the evaluation was at the behest of the admitted supervisor seeking information about Graham's performance from a se- nior employee who had worked with her. Mullinax has not contributed to any other evaluations. In fact, other employees have commented on Graham's eval- uations. Furthermore, the Employer's evaluation procedure is generally an informal one that is initiat- ed by the employee's completing a self-evaluation and is subject to independent review and investiga- tion by the executive director.9 Similarly, Mullinax's participation in the hiring process is also more in the nature of informed advice to management than an indication of the effective power to recommend. To an even greater extent than in the evaluation process, the Employer involves most of the employees in the hiring process. Typical- ly, the staff affected by the new hire will interview and screen applicants, recommending a limited num- ber of candidates to Martens, who then interviews them and makes a selection. Mullinax, as the former leader of the FACE project, was asked to participate in the selection of its new director. After screening and interviewing applicants, he made his recommen- dations. After reviewing the candidates, Martens made the final selection and chose Weinberg, who was not Mullinax's first choice. The Employer also ascribes significance to Mullinax's attendance at the Friday morning "man- agement" meetings. Despite the Employer's charac- See Neighhborhood Legal Servire.s, Inc., 236 NLRB 1269 (1978). The personnel manual specifically reserves to the executive director this nght 596 OHIO STATE LEGAL SERVICES ASSN. terization of these meetings, a more reasonable inter- pretation of the record is that the meetings are infor- mational and provide a regular forum for communi- cation and discussion. These meetings are held over breakfast in a local restaurant which is apparently patronized regularly by the employees. The Friday meetings are far from exclusive. Mullinax testified that he often attended merely because he was eating in the restaurant that morning. Employees readily substitute for each other at the meetings, the only requirement being that each operating area be repre- sented. That the Employer would hold such meetings is consistent with the procedures described above for evluations and hiring, which also involve feedback from the staff, with the decisionmaking power vested in the top hierarchy. As such, attendance at these meetings is not evidence of supervisory or manage- rial rank. Sanford Weinberg is the project director of FACE, which includes two other paralegals and a secretary. According to the Employer's witness, Assistant Di- rector Baker, Weinberg was responsible for writing the grant proposal and on day-to-day matters is re- sponsib!e for implementing the goals of the project. The Employer contends that these responsibilities are managerial and supervisory in nature, since in drawing up the proposal Weinberg created job posi- tions, set salaries, and determined the Employer's policy and since in implementing the program he in- fluences the hiring of personnel, manages the work assignments, evaluates the other FACE employees. and otherwise administers the project. Again, as with Mullinax, the record reveals that the Employer's characterization of the degree of Weinberg's independent authority to supervise the FACE employees is inflated. The description of Weinberg's independent role in creating the proposal is misleading. Weinberg testified that his discretion in writing the grant proposal was limited, since he was carefully supervised by Baker in its preparation. Although he recommended salary levels for the staff as part of the budget section of the proposal, those recommendations were subject to the same careful scrutiny as the rest of the document." Weinberg's decisions as to the substance of the proposal were technical grantsmanship judgments geared to what would be most successful in terms of getting funded. As far as Weinberg's responsibilities in the imple- mentation of the project, the Employer would have us elevate the role of a team leader to that of a supe- rior in the strict hierarchical sense." Baker character- ized Weinberg as the head of his section with ulti- O See Fordham University, 214 NLRB 971. 972-973 (1974). ' See Trailback, Inc., 221 NLRB 527 (1975). mate responsibility for its operations.'2 According to Weinberg and his two coworkers, however, they work cooperatively and by consensus. Although he spends 10-15 percent of his time coordinating the activities of the FACE employees and on administra- tive duties, Weinberg stated that his authority is lim- ited to reasoned persuasion. In the event of a dispute that the three of them could not resolve on their own, they all agreed that Weinberg does not have the au- thority to give a binding directive. Weinberg does not assign them work. Each of the FACE workers choos- es his or her areas of concentration after consultation as a group." Although they regularly meet to provide feedback for each other and to coordinate their ef- forts when appropriate, they operate independently. Employees outside FACE routinely approach Gra- ham and Cooper with projects without first clearing them with Weinberg. The Employer also contends, as it does with Mulli- nax, that Weinberg's supervisory authority is estab- lished by his participation in hiring, evaluations, and the management meetings. In addition to our find- ings with respect to Mullinax, the evidence of Weinberg's role in these areas clearly demonstrates that these activities are not indicative of supervisory status. When Martens requested Weinberg's com- ments on Graham's evaluation, he also specifically stated that he would retain final responsibility for it. Moreover, Graham testified that although Weinberg never discussed the evaluation with her, Martens visited her expressly for that purpose. As for Weinberg's role in the hiring '' of the third FACE employee, his role in screening and interviewing the applicants for Martens was identical to that of Gra- ham, an admitted nonsupervisor. Similarly, Graham occasionally substituted for Weinberg at those Fri- day breakfast meetings discussed previously. Robert Mapes is the senior member of the legisla- tive team and is the Employer's main lobbyist. He receives requests for assistance on bills from the Em- ployer's clients, other staff attorneys, and legislators. The Employer argues that Mapes supervises the other member of the legislative team, Miller, includ- ing directing, assigning, and evaluating her work: 1: The Employer's personnel manual sets the policies with respect to time off. vacations, leave. etc. To the extent that Weinberg has any responsibili- ties In these areas, they do not involve an- independent judgment. ihe FACE employees testified that as a practical matter such decisions are han- dled informally and cooperatively. with each person having the initial re- sponsibility for insuring that his work is not adversely affected Aside from his responsibilities with respect to the proposal and certain routine administrative tasks, Weinberg's duties do not differ from those of the others in the project in terms of their hierarchical importance. Although he does not participate in the adrmnistrative fair hearings. Weinberg does the same kind of community education work as Graham. 4 The Employer also argued that Weinberg hired the secretary for the FACE project. Weinberg, however. stated that Schmidt, the office adminis- trator. transferred the secretary to the FACE- staff and that he had no role in selecting her. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARII controlling her overtime, vacation, and leave; and ef- fectively recommending her promotion, discipline, or discharge. Again the evidence of specific instances in the rec- ord does not support the Employer's characterization of the degree of Mapes' authority. Although Mapes did not testify, Miller clearly stated that, while Mapes as the senior person often assisted and ad- vised her, he did not have the authority to direct her. Even though Miller sought his counsel, she insisted that in the event of a conflict both she and Mapes would resort to Baker to resolve the dispute. Other employees testified that they have dealt directly with Miller without consulting Mapes. In addition, Miller spends approximately one-half of her time engaged in activities other than lobbying, which are unrelated to Mapes' responsibilities. When engaged in lob- bying she performs the same tasks as Mapes and gen- erally operates independently, working on separate projects.'5 Thus, Mapes' direction of the less senior Miller, such as it is, is attributable to his experience and expertise on the job rather than to any superviso- ry status.'16 The Employer also contends that Mapes effective- ly recommended Miller for her promotion. Although Baker testified that as a practical matter Mapes' rec- ommendation was all that was necessary, the weight of the evidence indicates that the promotion was a result of independent investigation by the directors which included the solicitation of Mapes' opinion.'7 Miller did not approach Mapes with her request for a promotion. She went directly to Martens and met only with him and Baker to discuss it. Furthermore. as a general rule, such personnel matters are the ex- clusive province of Baker and Martens. Finally, the Employer makes the same argument with respect to Mapes as it did with respect to Wein- berg concerning attendance at the breakfast meetings and the administrative duties as head of a section.' In summary, with respect to Mullinax, Weinberg, and Mapes, Assistant Director Baker's testimony suggests, and the Employer contends, that they effec- tively recommend the employment, promotion, and discipline of employees in addition to responsibly di- recting them in their work. However, as described above, their authority and independent judgment in these areas are severely limited. Although their feed- The Employer in its argument that Miller is a managerial employee contends that she "determines the OSLSA legislative position without con- sultation with Bob Mapes .. ." "This statement, which is somewhat incon- sistent with its contention regarding Mapes, does. however, support a find- ing that Miller operates independently. See National Bureau of Economic Research. Inc.. 216 NLRB 171. 172 (1975). 1S Id. Is See fn. I1. supra back is solicited and required, sometimes along with that of admittedly nonsupervisory employees. their judgments are clearly subject to independent reas- sessment by the director and assistant director, who alone have the power to make personnel decisions. Concerning the direction of employees, apart from Baker's statements, the record is unanimous that Mullinax, Weinberg, and Mapes work cooperatively with their colleagues and that their direction, such as it is, is a function of experience and expertise rather than authority in the interest of the Employer. Aside from Baker. not one witness suggested that in the event of some unresolved dispute either Mullinax, Weinberg, or Mapes could direct a result that would not be subject to independent investigation and re- view by the stipu'ated supervisors. Accordingly, we find that the weight of the evidence demonstrates that neither Mullinax, Weinberg, nor Mapes exercis- es the requisite independent authority that would warrant their exclusion from the unit as supervisors.'9 The Employer's alternative contention that Mulli- nax, Weinberg, and Mapes should be excluded from the unit as managerial employees is without merit. The Employer argues that all three employees formu- late, determine, and effectuate management policies because they shape the Employer's policy in the ar- eas of their work such as welfare reform, legislative lobbying, and Federal food programs and as a result commit the Employer's manpower and resources.20 We have consistently stated, however, that manage- rial authority is not vested in employees merely be- cause their work performance may influence an em- ployer's direction. See Neighborhood Legal Services. .supra: General Dynamics Corporation, 213 NLRB 851 (1974). In this case only the executive director and possibly the assistant director have the authority to formulate, determine, and effectuate management policies with respect to labor relations.2' Accordingly, we find that Mullinax. Weinberg, and Mapes are not managerial employees. Administrative Secretaries In each of the four main SEOLS offices one of the secretaries is designated as the administrative secre- tary. In the Columbus office the administrative secre- 19 See Neighhborhhood Legal Services. In, In, supra. 20 With respect to Weinberg, the Employer relies on his preparation of the grant proposal. As noted before, h wever. his performance In this area was closely supervised by Baker and Martens. Moreover. Martens had the final approval of the proposal and submitted it himself to the granting agency. Fhus, as with Mullinax and Mapes. Weinberg's judgments are subject to institutional limitations and supervision and do not constitute the authority Io formulate, determine. and effectuate management policies with respect to labo relations. l ()n the basis of this finding and the la.ck of evidence demonstrating sufficient involvement with labor relations, we reject the Employer's argu mnents that Miller and Plummer are managerial employees. 598 OHIO STATE LEGAL SERVICES ASSN. tary, Angela Maddamma, is assigned to Martens and Baker. The Employer's assertion that the administra- tive secretaries in the SEOLS offices are supervisors is without merit. There is no evidence that the ad- ministrative secretaries have anything but routine re- sponsibilities with respect to the one or two other members of the support staff in an office. The only differences in work between the administrative secre- taries and the other secretaries are such routine du- ties as maintaining timesheets, handling petty cash, and writing checks for court costs. Their only direc- tive responsibilities are to see that the work is evenly distributed, although such assignment of work is in- formal and essentially cooperative. Moreover, nei- ther of the two out of four administrative secretaries who testified stated that administrative secretaries had any authority over other employees. With respect to the confidential status of the ad- ministrative secretaries, the record clearly demon- strates that they do not work in a confidential capaci- ty for persons who formulate, determine, and effectuate management policies with regard to labor relations. The administrative secretaries work for the managing attorneys. Although the managing attor- neys are stipulated to be supervisors, they are cer- tainly not persons who formulate, determine, and ef- fectuate management policies with regard to labor relations. As noted previously, personnel matters are laid out in detail in the personnel manual, and the Employer's labor relations are administered in a highly centralized fashion. Individual determinations on hiring, discipline, firings, and promotions are all made by the central office. Staffing decisions are similarly made by those in charge in the Columbus office. The Employer makes the same contentions with respect to the administrative secretary in the Colum- bus office, Angela Maddamma. On the supervisory issue, the Employer does not cite any evidence estab- lishing Maddamma's authority. Her position, how- ever, as secretary for Martens and Baker does sug- gest at first glance that she is a confidential employee. Martens and Baker, as the Employer's top administrators, clearly formulate, determine, and ef- fectuate management policies with respect to labor relations. She has typed the minutes of the Board meetings, has typed several memoranda dealing with the Petitioner, and has prepared letters and memo- randa concerning other personnel action, including evaluations. Nevertheless, the record is deficient on the critical issue 22 of whether Maddamma operates in a confidential capacity. Her assignment to Mar- tens and Baker was a result of a recent division of 22 See Ernst A Ernsl National Warehouse. 228 NLRB 590. 591 (1977) secretaries as part of a changeover from the "pool" system. Maddamma testified that she was never told that her role was confidential or that there were cer- tain matters that could not be farmed out to other secretaries.2 In fact, on one occasion Baker made a general request to all the secretaries for a volunteer to come in on a weekend to type some confidential matters relating to a grievance hearing. This indis- criminate request belies the Employer's contention that Maddamma's status is distinguishable from that of the other secretaries. Thus, since the record does not establish that Maddamma's role is a confidential one, we will include her in the unit. The Accounting Specialist Plummer, as the accounting specialist, is responsi- ble for the Employer's financial records, maintaining its accounts and preparing its budgets and tax state- ments. She is assisted by Linda Myrick, an account- ing clerk. According to Baker, Plummer directs Myr- ick in her work, is responsible for her evaluation, could effectively recommend her discharge, and au- thorizes her overtime, vacation, leave, etc. Myrick performs essentially routine tasks such as preparing vouchers for payment and checks, tallying the bank reconciliations, and handling petty cash reimburse- ments. The Employer contends, based on Baker's testi- mony, that Plummer is a supervisor and/or confiden- tial employee. Plummer, however, directs only one employee, Myrick, who at the time of the hearing had been employed for only 5 or 6 weeks. There are no concrete examples of the supervisory authority that Baker testified Plummer exercises. The person- nel manual provides that such matters as leave, over- time, and vacations must be authorized by the office administrator, who is Plummer's superior. Myrick's work requires little supervision except doublecheck- ing the financial work. Although Plummer assigns Myrick work, the range of tasks seems to be well defined. Thus, Plummer's exercise of independent judgment in that respect is limited. Any delegation of substantial power to Plummer in personnel matters appears inconsistent with the otherwise tight control management employees retain over the operation. Furthermore, since Plummer reports to Schmidt, the office administrator, and Baker, the assistant direc- tor, who are both responsible to Martens, if Plummer also supervised Myrick the chain of command would seem to be unreasonably topheavy. Thus, the weight of the evidence demonstrates that Plummer's direc- tion of Myrick is merely incidental to her responsibil- 23 It is office practice to spread work around when one secretary is over- burdened. 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ities as the accounting specialist and does not involve supervisory authority. Accordingly, in the absence of other specific examples of supervisory authority, we find that Plummer is not a supervisor as defined in the Act. The Employer's alternative argument that Plum- mer is a confidential employee is without merit, in view of our decisions stating that mere access to even confidential financial data is not sufficient to qualify one as a confidential employee. Planned Parenthood Association of Miami Valley. Inc., 217 NLRB 1098 (1975). Accordingly, we shall include Plummer in the unit. In sum, we find that the following employees may constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All regular professional, paraprofessional, of- fice, and clerical employees, including the senior staff attorney, the staff attorneys, the legislative agent, the project director, project coordinator, and the project assistant of the Food Action Community Education Project, the law assis- tants, the law clerks, the accounting specialist, the accounting clerk, secretaries, receptionists, and clerks employed by the Employer in all its offices in Ohio; excluding the executive director, the assistant director, the director of litigation, the office administrator, the managing attor- neys, and all confidential employees, managerial employees, and supervisors as defined in the Act. The unit set out above includes professional and nonprofessional employees. However, as previously noted, the Board is prohibited by Section 9(b)(1) of the Act from including professional employees in a unit with employees who are not professionals unless a majority of the professional employees vote for in- clusion in such a unit. Accordingly, we must ascer- tain the desires of the professional employees as to inclusion in a unit with nonprofessional employees. We shall therefore direct separate elections in the following voting groups: Voting Group A: All regular paraprofessional, office, and clerical employees, including the staff attorney performing lobbying functions, the legislative agent, the project director, project coordinator, and project assistant of the Food Action Community Education Project, the law clerks, the accounting specialist, the accounting clerk, secretaries, receptionists, and clerks em- ployed by the Employer in all its offices in Ohio; excluding the executive director, the assistant di- rector, the office administrator, the director of litigation, the managing attorneys, the senior staff attorney, staff attorneys performing tasks requiring a legal degree, and all confidiential employees, managerial employees, and supervis- ors as defined in the Act. Voting Group B: All regular professional em- ployees including the senior staff attorney, the staff attorneys performing tasks requiring a legal degree, law assistants employed by the Em- ployer at all its offices in Ohio; excluding the executive director, the assistant director, the di- rector of litigation, the office administrator, the staff attorney performing lobbying functions, the legislative agent, the project director, the project coordinator, and the project assistant of the Food Action Community Education Project, the accounting specialist, the accounting clerk, the law clerks, the secretaries, receptionists, and clerks, and all confidential employees, manage- rial employees, and supervisors as defined in the Act. The employees in the nonprofessional voting group A will be polled to determine whether or not they wish to be represented by the Union. The employees in voting group B will be asked two questions on their ballots: (I) Do you desire that the professional em- ployees be included in a unit composed of all professional employees and nonprofessional em- ployees of the Employer for the purpose of col- lective bargaining? (2) Do you desire to be represented for the purpose of collective bargaining by the Ohio State Legal Services Association Employees Union? If a majority of the professional employees in vot- ing group B vote "yes" on the first question, indicat- ing their wish to be included in a unit with nonpro- fessional employees, they will be so included. Their vote on the second question will then be counted to- gether with the votes of the nonprofessional voting group A to determine whether or not the employees in the whole unit wish to be represented by the Union. If, on the other hand, a majority of profes- sional employees in voting group B vote against in- clusion, they will not be included with the nonprofes- sional employees. Their votes on the second question will then be separately counted to determine whether or not they wish to be represented by the Union. There is no indication in this record that the Union would be unwilling to represent the professional em- ployees separately if those employees vote for sepa- 600 OHIO STATE LEGAL SERVICES ASSN. rate representation. However, if the Union does not desire to represent the professional employees in a separate unit even if those employees vote for such representation, the Union may notify the Regional Director to that effect within 10 days of the date of this Decision and Direction of Elections. Our unit determination is based, in part, then, upon the results of the election among the profes- sional employees. However, we now make the follow- ing findings in regard to the appropriate unit: i. If a majority of the professional employees vote for inclusion in the unit with nonprofessional em- ployees, we find that the following will constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular professional, paraprofessional, of- fice, and clerical employees, including the senior staff attorney, the staff attorneys, the legislative agent, the project director, project coordinator, and the project assistant of the Food Action Community Education Project, the law assis- tants, the law clerks, the accounting specialist, the accounting clerk, secretaries, receptionists, and clerks employed by the Employer in all its offices in Ohio; excluding the executive director, the assistant director, the director of litigation, the office administrator, the managing attor- neys, and all confidential employees, managerial employees, and supervisors as defined in the Act. 2. If a majority of employees in each voting group vote for the Union but a majority of professional employees do not vote for inclusion in the unit with nonprofessional employees, we find that the follow- ing two groups of employees will constitute separate units appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: Unit A: All regular paraprofessional, office, and clerical employees, including the staff attorney performing lobbying functions, the legislative agent, the project director, project coordinator, and project assistant of the Food Action Com- munity Education Project, the law clerks, the ac- counting specialist, the accounting clerk, secre- taries, receptionists, and clerks employed by the Employer in all its offices in Ohio; excluding the executive director, the assistant director, the of- fice administrator, the director of litigation, the managing attorneys, the senior staff attorney, staff attorney:; performing tasks requiring a legal degree. and all confidential employees, manage- rial employees, and supervisors as defined in the Act. Unit B: All regular professional employees in- cluding the senior staff attorney, the staff attor- neys performing tasks requiring a legal degree, law assistants employed by the Employer at all its offices in Ohio; excluding the executive direc- tor. the assistant director, the director of litiga- tion, the office administrator, the staff attorney performing lobbying functions, the legislative agent, the project director, the project coordina- tor. and the project assistant of the Food Action Community Education Project, the accounting specialist, the accounting clerk, the law clerks, the secretaries, receptionists, and clerks, and all confidential employees, managerial employees, and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote omitted from publication.] 601