North Arkansas Electric Cooperative, Inc.

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Arkansas Electric Cooperative , Inc. and Inter- national Brotherhood of Electrical Workers, AFL- CIO. Cases 26-CA-2585 and 26-CA-2620 August 27, 1970 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, MCCULLOCH, AND BROWN The National Labor Relations Board issued its original Decision and Order in this case on December 18, 1967, finding that Electrification Advisor Jack Lenox was discharged for engaging in union activity, that Lenox was not a managerial employee as Respondent contended, and that Lenox's discharge violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended.' On application for enforcement of the Board's Order, the United States Court of Appeals for the Eighth Circuit concluded that Lenox's duties did closely ally him with manage- ment and that in a representation context the Board would find Lenox to be a managerial employee. The court then remanded the case to this Board "to determine whether or not the discharge of Lenox, as a `managerial employee' under all the circumstances of the case, was or was not violative of the Act."' As the court pointed out, the "managerial employ- ee" category is Board created, not established by the Act.' In our representation case proceedings, indi- viduals found to fall within that category have been consistently excluded by the Board from bargaining units of other types of employees. But typically in those cases, our concern has been whether certain nonsupervisory employees have a sufficient communi- ty of interest with the general group or class of employees constituting the bulk of a unit so that they may appropriately be considered a part thereof. Where the interests of certain employees seemed to lie more with those persons who formulate, determine, and oversee company policy than with those in the proposed unit who merely carry out the resultant policy, we have held them to be excluded, and have commonly referred to such excluded persons as "man- North Arkansas Electric Cooperative, Inc, 168 NLRB No 122 N L R B v North Arkansas Electric Cooperame, Inc , 412 F 2d 324, 328 (C A 8. 1969) ' The concept seems to have had its origin in Vulcan Corporation, 58 NLRB 733, 736, where a timber cruiser log buyer, who spent about 75 percent of his time away from the plant and occasion substituted for the superintendent, was excluded from a unit because "of the responsi- bility of his position and his peculiar relationship to management, and in view of the fact that his interests are apparently different from those of the production and maintenance employees " agerial employees," without ever having attempted a precise definition of that term . Our lack of clear definition has evoked some judicial criticism. Thus, one court has commented that the Board "has not developed clear guidelines for determining whether particular individuals are `managerial employees,"" and another has announced that there was no stated Board rationale for finding the procurement drivers in Swifts and the credit managers in Diana Shop6 to be managerial.' This lack of definition may be inherent in the difficult process which we face constantly in evaluating "community of interest" in many kinds of unit deter- minations. Since, however, in representation cases "community of interest" is the principal determinant, our decisions in those cases are not genuinely relevant to the issue here. An employee may not have the requisite community of interest with other employees to be included with them in a proposed unit, and yet clearly be an employee entitled to the protection of the Act as a Section 2(3) "employee." On the other hand, some persons we have traditionally exclud- ed as "managerial " might more accurately have been termed "employers" within the definition of Section 2(2), which defines employers as including "any person acting as an agent of an employer." In this case, we have been called upon to determine whether a given individual is to be considered as a Section 2(3) "employee" or a Section 2(2) "employer." As we have explained above, the fact that he may be a "managerial employee" for purposes of determining his exclusion from a given bargaining unit may well not assist us materially in making this kind of determination. We do not in this initial consideration wish to attempt an inflexible comprehensive definition, for we are of the view that a definition must be evolved on a case-to-case basis. However, it is relevant, we believe, to focus our attention upon whether the employee here had either real or apparent authority to speak as an "employer" in a labor relations or employee relations context. Although Lenox exercised discretion in the perform- ance of his duties and responsibilities , was paid on a monthly basis, received no extra pay for overtime, participated in semiannual meetings concerning pro- grams for attracting and retaining customers, and occasionally spoke for the Employer in his dealings with customers and advertisers, there is nothing in ' Illinois State Journal-Register, Inc v N.LR B, 412 F 2d 37 at 41 (C.A 7,1969) ' Swift & Company, 115 NLRB 752 Diana Shop, 118 NLRB 743 Retail Clerks International Association , Local 880 v NLR B, 366 F2d642,645(CADC) 185 NLRB No. 83 NORTH ARKANSAS ELECTRIC CO-OP the record to suggest that he participated in the formulation, determination, or effectuation of policy with respect to employee relations matters. Nor is there any indication that his status in the Cooperative's organization was such as to lead any employee reason- ably to believe that Lenox had substantial responsiblili- ties in this area, so that views which he might express would be taken as a reflection of the considered position of the Cooperative. Finally, insofar as we can determine there is nothing in this record to suggest an inconsistency or conflict of interest between Lenox's proper performance of his job and the imple- mentation of his right to engage in or refrain from engaging in concerted activity. While Respondent might well have had a legitimate interest in regulating Lenox's conduct in his contacts with customers, we are unable to perceive any conflict between Respond- ent's right effectively to carry on its business and Lenox's freedom to express his views to the Respond- ent's other employees with respect to this or any other union. 551 Under these circumstances, and even if we would have found that Lenox had insufficient community of interest with the employees in the unit to include him therein, nevertheless, upon the entire record, we find him to be an "employee" rather than an "employer," and we conclude, therefore, that his dis- charge on October 20, 1966, violated Section 8(a)(3) and (1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby affirms as its Order the Order heretofore entered in this proceeding on December 22, 1967. ' Insofar as Swift & Company, supra, and other cases have indicated, in a representation case context , that managerial employees might not be entitled to the protection of the Act, we hereby overrule them to the extent that they may be inconsistent with our decision herein