Clothing Workers of America

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Clothing Workers of America , AFL-CI- 0, CLC and Amalgamated Clothing Workers Southern Staff Union, Petitioner. Case 2-RC-16050 May 28, 1974 DECISION ON REVIEW AND DIRECTION OF ELECTION On March 13, 1973, the Regional Director for Region 2 issued a Decision and Order in the above- entitled proceeding, in which he dismissed the petition on the basis of his finding that the Employ- er's union label staff employees, sought to be represented by the Petitioner, are supervisors as defined in the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's Decision on the ground, inter alia, that a substantial question of law and policy is raised by the above finding. By telegraphic order dated May 15, 1973, the Board granted the request for review. Thereafter, the Petitioner filed a brief on review. The Board has reviewed the entire record in this case with respect to the issues under review, including the Petitioner's brief on review, and makes the following findings: The Employer is a labor organization maintaining its general offices in New York City. The Petitioner, as indicated, seeks to represent the Employer's union label staff employees who engage in functions related to consumer boycott and union organizational activities throughout the United States. The Regional Director found the requested employees to be supervisors inasmuch as picketing is a major function carried on by them, and their hiring of people to perform picketing, the overseeing of picketing activi- ties, and the authority to discharge such pickets are regular and frequent portions of their normal duties. The Employer's union label staff department is headquartered in New York City. Its principal function is to implement the Employer's r_^isumer education and boycott campaigns. In addition, in the past, as much as 50 percent of the department's work has involved organizing activities. Since May 1972, however, its time has been devoted principally to the Employer's nationwide boycott campaign against a particular manufacturer's products. The department is managed by its national director. Directly respon- sible to him is the national field director who coordinates and controls the activities of the staff members whose status is disputed herein. Each staff member is assigned to a particular geographical area of the Nation and primarily has the responsibility of overseeing the implementation of the Employer's consumer education program in that area. This involves appeals to the general public for the purpose of creating a positive acceptance of union-made products. As part of his duties, the staff member surveys business in a given city within his assigned area, determines if boycotted products are being sold, and attempts to dissuade the manage- ment of those stores from dealing in such products. At the same time, he may contact local civic groups to enlist support for the Employer's position and otherwise publicize it to the extent possible in local media. When deemed necessary, the staff member consults with the national field director to target a store or stores in the city for consumer picketing and leafleting.' The field director has the responsibility for approving the targeted stores and authorizing, if necessary, the expenditure of the Employer's funds for this purpose, including the hiring of pickets. On occasion, the Employer's r' ional vice president for the area involved will forestall the picketing of stores he deems friendly to the Employer. When a store has been targeted for consumer picketing and handbilling activities, arrangements are made to enlist individuals to perform these functions, either on a volunteer basis or for some minimal compensation, as discussed below. In some instances officials of the Employer's locals or joint boards undertake to make these arrangements, but in other instances the staff member handles them.2 When the staff membei performs this function he works in conjunction with the officials of such local organizations, or officials of other unions, as well as community organizations, such as church and school groups. Often the staff member merely does the necessary groundwork for setting the local campaign in motion, such as consulting with the national office to target a particular store. Once preliminaries are completed the staff member then turns to other boycott duties within his assigned area, leaving the picketing in the hands of local union officials. The staff member may revisit the picket site to assure that the Employer's national guidelines are being adhered to. It is unclear how much of the staff member's time is spent personally engaging in picketing line duties and how much on recruiting pickets. When obtaining pickets, the staff member, through local officials or on his own, initially seeks volunteers from groups of 1 When a retail chain is involved, the national office without any contact of the Employer's local labor organizations and in other instances the staff with the staff member will itself target a particular store of the chain for member does not directly engage pickets but merely states his needs and a boycott activities. local official engages the pickets 2 The staff member at times selects individuals recommended by officials 210 NLRB No. 126 CLOTHING WORKERS OF AMERICA 929 striking union members , retired workers , relatives of union members, local union members willing to picket after working hours , and from local communi- ty groups, such as college students. The staff member on occasion will offer as an inducement the cost of food or transportation . At times he may find it necessary to offer a nominal hourly pay for pickets. Hourly pay is offered when the staff member resorts to local employment agencies, Hourly payments are most often made by the Employer's local organiza- tion and at times by the staff member using either his own money or funds specifically designated for such use by the Employer . When the staff member draws on his own funds or one of the Employer's local organizations supplies the money, the Employer upon request makes reimbursements on the basis of vouchers submitted , In some instances, when an individual is paid an hourly rate by a local organiza. tion, he is carried on the organization's payroll and deductions are made for taxes . There is no evidence that the Employer ever withholds taxes for any disbursements it makes for such a purpose. Nor is there evidence that the pickets are even carried on the Employer's payroll records or that they receive any of the pension, insurance , vacation, or sick leave benefits provided for the Employer's full- or part- time employees. The individuals engaged for picketing are not required to possess any particular qualifications.3 Those who make themselves available are hired and work for several days depending on the budget provided for the picketing by the national office. The pickets work for a few hours each day and are directed by the staff member or his assistant pursuant to the national office's guidelines . When the budgeted funds are depleted , then apparently this particular local aspect of the national campaign is concluded and the campaign moves on , The pickets, however, do not move with the campaign and their employment is ended . There is no evidence that the Employer makes a practice of asking these same individuals to picket again in the future nor is there evidence that a rehire list is kept by the Employer, The design of the boycott program , as indicated, is principally controlled by guidelines set by the national office. The staff member or someone assistin& him, such as a local business agent, is responsible for instructing those individuals who will picket and leaflet as to where , when, and how they are to perform their duties, in strict accord with instructions prepared by the legal department of the Employer's national office. The written materials to be distributed in connection with this picketing are also prepared at the national headquarters and the staff member is prohibited from altering this material without prior approval from the national office. The staff members also are required to report on their activities to the national office once each week. In many instances , they have other telephone contacts with the field director. Through these conversations, staff meetings, and the written materi- als provided, the national office exerts its control to insure the boycott program is being directed from the national headquarters. Upon the foregoing and the entire record in this case, we conclude that the degree and extent of supervisory authority shown to be exercised by the staff members herein are insufficient to preclude their representation as a separate appropriate unit apart from other employees. Aside from the issue raised as to the supervisory status of the staff members , we note that no contention is made that the individuals sometimes hired by them for picketing and handbilling duties must be included with them in the same unit. Indeed, as it appears that these pickets for the most parrwerlc. for short periods and have no history of recurrent similar employment , we find that they are employed on a temporary or casual basis and therefore need not be included in the unit.4 Contrary to the Regional Director, we see no indication of supervisory authority in the fact that staff members direct picketing and handbilling activities, inasmuch as such directions are routine in nature, and strictly in accord with detailed instruc- tions and guidelines from national headquarters. Thus, the only possible basis for finding the staff members to be supervisors is, as stated above, that, on occasion, when volunteers are unavailable, they are authorized to hire individuals for picketing and handbilling duties at targeted stores and to terminate them when the budgeted funds for the projects are depleted . There is no evidence in the record that the occasions requiring the exercise of this authority arise with any frequency or that this aspect of their job function involves more than a minimal amount of their time . In the circumstances, as the pickets occasionally hired by them are not included in the unit herein below found appropriate , we find that no danger of conflict of interest within the unit is presented . We likewise conclude that the limited exercise of supervisory authority shown herein does not so ally the staff members with the Employer's management as to create the more generalized type of conflict of interest which would preclude estab- lishing the staff members as an appropriate bargain- 3 A union label staff member testified that there are no qualifications picket because the parson's breath smelled of liquor. required of a picket and no selection procedure exists for choosing pickets . 4 Hygela Coca.Cola Bottling Company, 192 NLRB 1127; San Francisco He also testified that In 23 years he refused only one Individual wanting to Metal Products Company, d/b/a O 'Hara Metal Products Co., 153 NLRB 236. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing unit. Moreover, to the limited extent that the staff members exercise supervisory duties, the Petitioner, if selected herein as their representative, would not represent them with respect to such duties.5 Our colleagues refer to the picketing as a "major function" of the union label staff which here seeks representation, and as involving a "substantial portion of their time." They characterize the hire and discharge of picketers and the overseeing of same as "regular and frequent" portions of the normal duties of that staff. Apparently they see in the record specifics which we do not. As we have indicated, the record is not clear on the amount of time expended in connection with picket lines . The staff consists of 16 employees to cover the entire country; 2 employ- ees, for instance, cover all of New England. As noted earlier, duties include enlisting the support of the local community and media, surveying the assigned region to pinpoint stores selling the boycotted product, and consulting with the national office to target a store for consumer picketing. The staff member after organizing a picket line often entrusts it to the local business agent while he pursues other consumer education projects. He may also engage in an organizing campaign. Duties with respect to picket lines are certainly "a" function of the staff. We, however, cannot say on this record that that function is "major" or constitutes a "regular and frequent" part of normal staff duties, and least' of all that it requires a "substantial portion" of staff time. By their approach, of course, our colleagues are in a position to decline to implement the salutary princi- ple expressed in the Adelphi decision, not to deny bargaining to employees simply because part of their time is spent in the exercise of supervision over nonunit personnel. The Board in Adelphi found the college chairman of admissions not to be a supervisor within the meaning and intent of Section 2(11) even though he had authority to hire, fire, and direct a secretary. The secretary was a regular employee of the college but not included in the faculty unit. The picketers here may also be employees of this Employer, although more likely of its locals, but they are casuals and for that reason clearly do not belong in the unit sought. The Board has addressed the specific problem of supervision over temporary workers who are wholly outside the scope of the unit sought, and concluded that employees who spend "50 percent or more of working time performing non-supervisory duties" should not be denied the advantages of collective bargaining.6 We think the Board meant in Westing- House that the evidence should be quite specific before employees with dual functions are denied representation because of time spent on supervision. fhe Board seemed to have had no doubt of that in Adelphi where Westinghouse was twice cited, once on p. 644 with respect to the chairman of admissions, and then on p. 645 with respect to full-time instructor Pitcoff, the director of motion picture studies whose budget for the next year provided for the hire of students as part-time employees. As to Pitcoff they noted the lack of showing "that over 50 percent of his time will be required by his supervisory duties" and included him in the faculty unit. Our colleagues see no resemblance between the facts concerning these union label staff employees, also called "regional directors," and the Adelphi "director of admissions" and "director of motion picture studies," or the Westinghouse engineers, though hire, direction, and discharge of others incident to carrying out a program are a part of the duties of each, and those affected by this incidental exercise of supervisory authority-whether casual picketers, a secretary, students working part time, or craft employees working on a temporary basis-pre- sent no conflict of interest within the unit at issue.? In our view, and in these circumstances, Section 2(11) does not require dismissal of this petition or disqualification of individual "staff employee-region- al directors" from voting in the absence of a showing that over 50 percent of the time of such employees is or will be required by supervisory duties. Unless that is shown, they are entitled to be represented for the nonsupervisory work for which they were hired. Sequential conclusions that picketing is a "major" function and includes "substantial" time in supervi- sion do not satisfy recent Board precedent. Clearly these employees have, at certain times, devoted as much as 100 percent of their time to consumer boycott activities-for which they are hired at the national level-but the record lacks any meaningful basis for concluding that directing pickets, and occasionally organizers, has required as much as 50 percent of their time. Accordingly, we find that a question affecting commerce exists herein concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. We further find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: s See Adelphi University, 195 NLRB 639; Westinghouse Electric Corpora- casual or temporary employees of the Union in their work as pickets, and Lion, 163 NLRB 723. are not within the unit of staff employees "working in and out of [the 6 See Westinghouse Electric Corporation, supra at 727. Union's 1 International office located in New York City." 7 The picketers whom these staff employees supervise are generally only CLOTHING WORKERS OF AMERICA 931 All union label staff employees of the Employer working in and out of its International office located in New York City, New York, excluding all other employees , all office clerical employees, professional employees , guards and supervisors as defined in the Act.8 [Direction of Election and Excelsior footnote omitted from publication.] CHAIRMAN MILLER and MEMBER KENNEDY, dissent- ing: We agree with the Regional Director's conclusion that the petition herein must be dismissed because the union label staff members are supervisors. It is undisputed that the "union label staff personnel are really called regional directors. They are responsible for carrying out the union label programs of the national organization in the regions that they supervise." The majority opinion correctly points out that their principal function is to imple- ment the Employer's consumer education and boycott campaigns. In connection with this primary function, the union label staff members direct activities toward targeted stores for consumer picket- ing. Once a decision has been made to engage in picketing, the responsibility rests with the union label staff member to obtain pickets, to direct and supervise their picket line activities, and to discharge any persons he may have hired. In obtaining pickets, the staff member first will seek volunteers. This, however, is most often not possible, and he therefore is authorized to hire pickets from any available source within certain monetary limits set by National Field Director Mileski.10 Ordinarily, the union label staff member will initially seek pickets from a local union affiliated with the Amalgamated, and if they are not available from that source, from other labor organizations within the area . If pickets still are needed, he may employ students and in some cases union label staff members have utilized local employment agencies as a source to obtain pickets. Having obtained and hired the pickets, the union label staff member then instructs them in the manner of picketing, distributing to them certain literature prepared by the Amalgamated's legal department, and satisfies himself that each picket is familiar with the guidelines set forth. In order to assure compli- ance with the law, the union label staff member is B The parties are in dispute with respect to the eligibility of employees Draper, Bellaver, and DuCharme (the spelling of the last two named individuals conforms with the spelling of their names in the record). At the time of the hearing Draper was being carried on the payroll but was not working due to an illness . The Employer asserted that the nature of her illness left no reasonable expectation that she would again perform unit work . Bellaver retired in the fall of 1970 but there is evidence he has returned to work for substantial periods since that time DuCharme was furnished with very specific guidelines concerning picketing activity. However, the hours of picketing and the number of pickets are within the discretion of the union label staff member, again within the monetary limitations set for him. Payment of pickets is arranged by the union label staff member, such payments being made out of pocket or by local organizations affiliated with the Amalgamated. In either instance the Amalgamated reimburses such payments. The record establishes that the union label staff members in issue here spend a substantial portion of their time performing the various duties recited above. Our colleagues attempt to minimize the time spent by members of the union label department in supervising pickets. The following testimony of National Field Director Mileski is uncontradicted: Q. Now, to the best of your knowledge, how much time does a union label staff member spend in dealing with, or supervising, pickets? A. It is hard to say by year. I will say as an example from May of last year to the present they have spent 100 per cent of their time devoted to consumer boycott activities. We are seldome [sic] without picketing cam- paigns going on. The only exception to that is if a man is involved in an organizing campaign which we resist, if we can, getting involved in it. We should be a good share of time actively picketing retail stores. MR. GOLDBERG: Let me ask you this : Since the Farah campaign began in May of 1972 is it not true that in most, if not all of the areas in which union label staff personnel are assigned, that there has been picketing going on every week? THE WITNESS: Absolutely. As a matter of fact, as I sit here today there are four to seven stores being picketed. We think the Regional Director was clearly correct in concluding that a substantial part of the time of the individuals with whom we are here concerned is spent in supervising picketing and related duties. Mileski testified that he prefers to limit the activities of the union label department to consumer education and boycott campaigns. They do on occasion get involved in organizing work. When they reassigned in September 1972 from the Employer's Canadian office to work in the United States on the Employer' s aforementioned national boycott. As the evidence is insufficient to permit us to make a determination at this time, we shall permit Draper. Bellaver, and DuCharme to vote subject to challenge. is Mileski testified that the Union had not been getting volunteer pickets and that "99 percent of our picketing is not volunteer ." (Emphasis supplied.) 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are so engaged, they usually supervise the employees of the union who are assigned to work on that organizing campaign. Thus, Petitioner's only witness, Henry Becker, had served as director of a campaign to organize four plants of the Reidbord Company. Becker had a staff of seven or eight people reporting to him. Mileski testified that two employees were removed from the campaign at Becker's insistence. Mileski preferred to give the two employees a warning and keep them on the scene, but Becker was insistent that "if he were the director" the people had to be removed from the campaign. Jack Corcoran, another member of the union label department, was put in charge of an organizing campaign at the Metro Pants Company. In directing that campaign, he had two employees removed and one of them was subsequently discharged. One of the individuals was removed by Mileski on the basis of a telephone conversation with Corcoran and without further investigation. Similarly, Stan Clair, who is included in the unit found appropriate by the majority, had full responsibility to supervise the union employees involved in an organizing effort at the JBC Compa- ny. An individual was discharged on Clair's recom- mendation. Admittedly, organizing is a secondary function of the union label staff people but that does not detract from their supervisory responsibilities. The Regional Director properly concluded that Section 2(11) of the Act must be interpreted in the disjunctive and, accordingly, the possession of any one of the authorities set forth in that section places an individual within the supervisory class. Ohio Power Company v. N.L.R.B., 176 F.2d 385 (C.A. 6), cert. denied 338 U.S. 899; Oregon Stevedoring Company, Inc., 162 NLRB 1272, 1274. Section 2(11) of the Act defines supervisors in terms of vestea authority and not in terms of percentage of time spent in exercising one of the powers enumerated in that section. As recently noted by the Ninth Circuit in Arizona Public Service Company v. N.L.R.B., 453 F.2d 228 (1971), "The statute turns upon the existence of a power and not upon the frequency of its utilization." See also N.L.R.B. v. Fullerton Publishing Company, d/b/a Daily News Tribune, 283 F.2d 545 (C.A. 9, 1960), where the court rejected the contention that an individual was not a supervisor because the individual spent at least half of his time in a nonsupervisory position. In finding the regional directors not to be supervisors, we believe our colleagues have reached a strained interpretation of the words used in the statute to define supervisors. The facts in Westinghouse Electric, relied upon by the majority, bear no resemblance to the facts in the instant case. A majority of the Board in that case believed the individuals occupied jobs similar to those considered to be "seasonal supervisors" in The Great Western Sugar Company, 137 NLRB 551. The Board stated in Westinghouse: [T]he supervisory jobs which the senior engineers may be called upon to perform are not regularly and closely intermingled with their nonsuperviso- ry work activity. Rather, depending on the Employer's assignment, their status shifts, full- time, from supervisory to nonsupervisory work for a measurable and continuous period of time, and their duties in each position are sharply demarcated. In the present case, the hiring and direction of pickets is an integral part of the regular duties of these regional directors. It cannot be said there is a sharp demarcation between the hiring of pickets and their other regular duties in connection with their consumer boycott responsibilities. It is an inherent part of their regular duties. Surely, Westinghouse does not purport to overrule that long line of cases holding that an individual who regularly substitutes for a supervisor is a supervisor and should be excluded from any bargaining unit. In Swift & Company, 129 NLRB 1391, the Board excluded from the bargaining unit a draftsman- estimator who had the authority to hire and discharge "during the 15 percent of his worktime that he uses in substitution for departmental foremen." Illustrative of long-standing Board policy is the decision in Minnesota and Ontario Paper Co., 92 NLRB 711. The Board stated: Owen Miggins regularly takes the place of the wood storage supervisor, an admitted supervisory official, when he is absent from the storage yard, a duty consuming approximately 20 percent of Miggins' time. As Owen Miggins regularly substi- tutes for the wood storage supervisor and thus acts in a supervisory capacity for a substantial period of time, we find that Miggins is a supervisor within the meaning of the Act. Accord- ingly, we shall exclude him from the unit. The Board continues to regard individuals who substitute on a regular basis as supervisors.ii It seems patently inconsistent for this Board to exclude from bargaining units individuals who substitute for supervisors less than 50 percent of their time but include in this bargaining unit individuals whose regular duties include hiring and directing pickets. In our view, the Westinghouse 50-percent rule should not and cannot be extended to individuals 11 In Sewell, Inc., 207 NLRB No 36, the Board recently concluded that day every 2 weeks. Similarly, Eugene King was found to be a supervisor Willard Strain was a supervisor by reason of his serving as acting foreman t because he acted as foreman 2 days per week. CLOTHING WORKERS OF AMERICA 933 whose regular duties include hiring, firing, or directing employees. Inasmuch as picketing is a major function carried out by the union label staff members and as their hiring of people to perform picketing, the overseeing of picketing activities, and the authority to discharge such pickets are regular and frequent portions of their normal duties, we conclude these members possess and exercise supervisory authority within the meaning of Section 2(11) of the Act. Since the unit sought herein consists solely of supervisors, an election is not warranted.