Amalgamated Clothing Workers of America

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Clothing Workers of America, AFL-CIO, CLC andAmalgamated Clothing Work- ers Southern Staff Union, Petitioner. Case 2-RC-16050 March 26, 1975 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENNELO Pursuant to our Decision and Direction of Election in the above-captioned case (210 NLRB 928 (1974)) a secret ballot election was conducted by mail in the unit described below.' Thereafter, the Employer filed timely objections to the election. On August 13, 1974, the Regional Director for Region 2 issued a report recommending that the objections be, overruled and that the Petitioner be certified as the unit employees' collective-bargaining representative.' The Employer has filed exceptions to that report, and the Petitioner has filed an answering brief. The Board has reviewed the record in light of the exceptions and briefs and hereby adopts the Regional Director's findings and recommendations. The Board's original decision in this case specifically found that a unit of all "label staff employees of the Employer working in and out of its International Office located in New York City" was an appropriate unit for the purposes of collective bargaining. The Employer's contrary contention that these employees were supervi- sors was rejected. Member Kennedy, who disagreed with the majority's conclusion above, also dissents herein, asserting that the votes of these employees were challengeable on the supervisory issue. We find no merit in this position. For we find, to the contrary, that the votes of the label staff employees were not chal- lengeable, that the Employer was properly denied the opportunity to challenge them, and that the election should not be set aside. It is the Board's long-established procedure and practice to deny any party to an election the oppor- tunity to challenge the ballots of individuals in catego- ries as to which the Board has already ruled on eligibility.' This has been announced many times in i The tally was: nine for, and none against, the Petitioner; there were six challenged ballots, an insufficient number to affect the results 2 The pertinent portion of the Regional Director's report is attached hereto and marked "Appendix." 3 E.g, Atlantic Furniture Products Co., Inc, 102 NLRB 1241 (1953), employees held eligible: The Kleinhans Company, 115 NLRB 627, 628-629 (1956), and Animal Trap Company ofAmertca, 107 NLRB 1193, 1194 (1954), employees held ineligible Although in Animal Trap Company ofAmerica, supra, the Board found no prejudice in the fact that the Board agent had allowed three individuals to cast challenged ballots, although they had been excluded from the unit in the prior Decision and Direction of Board decisions, as well as in the Board's Field Manual,' and should be clearly understood by all Board personnel and by members of the bar who regu- larly practice before this Board. In this case the majority of the participating Board Members had already decided that the label staff em- ployees are not managerial employees or supervisors within the meaning of the Act; if that were not so, there could have been no Direction of Election issued, as the unit is composed only of such employees. Under these circumstances, the inquiry by the Regional Director to the Executive Secretary's Office as to whether to accept challenges on the very grounds already rejected by the Board was entirely unnecessary and shows, at best, an excess of caution; but such an inquiry does not elevate the matter to a question td-be answered by the Board Members themselves. Accordingly, the Regional Director's characterization, i.e., that it was "with Board approval," is totally irrelevant, and it is im- material that this purely ministerial matter had not been discussed with all the Board Members. Our dissenting colleague attempts to make much of certain phrases taken from our original decision herein, construing them as indicating that we left open the question of the eligibility of individuals within the unit there found appropriate. This is not the case. For, while we noted that the record in the instant case was not clear on the amount of time so expended, we did so in applying our construction of Westinghouse Electric Corporation, 163 NLRB 723 (1967), as meaning that, in the absence of specific evidence that time spent in supervision was 50 percent or more of working time, employees with dual functions were entitled to repre- sentation. Thus, in the original decision herein (210 NLRB 928), after stating (at 929), .. . as the pickets occasionally hired by them are not included in the unit herein below found appro- priate, 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 ... . we went on to say (at 930): Our [dissenting] colleagues refer to the picket- ing as a "major function" of the union label staff which here seeks representation, and as involving a "substantial portion of their time." They charac- terize the hire and discharge of picketers and the Election, that would not have been the situation in the instant case where all voters would have cast challenged ballots, the ballots would not have been counted until after the challenges were disposed of, and in making such disposition the Board would be acting contrary to its practice of refusing to permit relitigation of previously decided matters 4 NLRB Field Manual Sec. 11338.51 (1971) 217 NLRB No. 20 AMALGAMATED CLOTHING WORKERS OF AMERICA 99 overseeing of same -as "regular and frequent" por- tions 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. . . . Duties with respect to picket lines are certainly "a" function of the staff. We, however, cannot say on this record that that func- tion is "major" or constitutes a "regular and fre- quent" part of normal staff duties, and least of all that it requires a "substantial portion" of staff time. By their approach, of course, our [dissenting] colleagues are in a position to decline to implement the salutary principle expressed in the Adelphi [University, 195 NLRB 639 (1972)] decision, not to deny bargaining to employees sim- ply because part of their time is spent in the exer- cise of supervision over nonunit personnel. . . . 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-supervi- sory duties" should not be denied the advantages of collective bargaining.6 We think the Board meant in Westinghouse that the evidence should be quite specific before employees with dual functions are denied representation because of time spent on supervision. . . . [Emphasis supplied.] 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 in- cident 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-present no conflict of interest within the unit at issue.' In our view, and in these circum- stances, Section 2(11) does not require dismissal of this petition or disqualification of individual "staff employee-regional 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 con- clusions that picketing is a "major" function and includes "substantial" time in supervision do not satisfy recent Board precedent. [Emphasis supplied.] 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 di- recting pickets, and occasionally organizers, has re- quired as much as 50 percent of their time. [Emphasis supplied.] [Accordingly, the majority found that a question concerning representation existed and that the unit sought was appropriate.] 6 See Westinghouse Electric Corporation, supra [163 NLRB 723] at 727. 1 The picketers whom these staff employees supervise are generally only casual or temporary employees of the Union in their -work as pickets, and are not within the unit of staff employees "working in and out of [the Union's] International office located in New York City " It is quite clear from the above that we determined that, in the absence of evidence in the record before us that the union label staff employees spent over 50 per- cent of the time in supervisory functions, all of these dual function employees are employees within the meaning of the Act and were eligible to vote in the election. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Amalgamated Clothing Workers Southern Staff Union, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargain- ing in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment: 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. MEMBER KENNEDY, dissenting: For the reasons stated in the dissent to the initial Decision in this case, 210 NLRB 928, I would not certify Petitioner as the representative in the unit in which the election was conducted. I adhere to the view that the union label staff personnel are supervisors within the meaning of Section 2(11) of the Act. I am of the further view that the Amalgamated, the Employer herein, was improperly denied the right to challenge those voters who it contended satisfied the supervisory criteria set forth in the majority opinion. Significantly, there was no affirmative finding in the original majority opinion herein that the "union label 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD staff personnel" spend less than 50 percent of their time performing supervisory duties.-Quite the contrary, the majority states that in their opinion the "record is not clear on the amount of time expended" in this regard. Under these circumstances, it was manifest error to refuse to entertain the challenges. In thousands of cases, this Board has directed that the ballots of voters be challenged because the records were less than clear as to their duties. Apparently, my colleagues perceive no impropriety in the erroneous advice to the parties that the Board had approved the refusal to accept the challenges when in fact four Members of this Board were not even con- sulted about the challenges.5 It is one thing to advise ,parties as to the views of the Executive Secretary, but quite another to advise those parties that the Board has approved a course of action when in fact four Members of the Board have not even considered the issue. The majority errs in stating that it was "entirely unnecessary" for the Regional Director to have in- quired as to whether challenges should be accepted by the Board agent conducting the election. Having found in the initial Decision herein that the "record is not clear on the amount of time expended" in hiring and discharging pickets and overseeing their duties, it is incorrect to suggest that the Board has already ruled on the eligibility of all individuals within the union label staff department. The original majority decision herein found no more than that a unit of union label depart- ment personnel is appropriate. That majority decision further found, in effect, that it could not decide eligibil- ity issues because the majority could not say on the record whether "that function [of supervision of the pickets] is `major' or constitutes a `regular and fre- quent' part of normal staff duties." The Amalgamated correctly argues in its exceptions that the refusal to accept the challenges denied it "the very right created by the Board's Decision and Direction of Election to establish disqualification of individuals on the basis of criteria set forth in the Board' s Decision. Amalgamated is thus put in a Catch 22 posture." The decision to deny Amalgamated the procedural right to challenge ballots, if sustained by a reviewing court, will be dispositive of 5 The Regional Director stated in his Report on Objections: the substantive issue herein. My colleagues are wrong, I think, in stating that the ruling that challenges should not be accepted was a "purely ministerial matter" which did not require discussion with the Board Mem- bers. in my view, denial of a party of its right to chal- lenge the ballots of individuals about whom the record is found to be deficient is not a "purely ministerial" act. My colleagues suggest that I make too much of the phrase appearing in their original Decision that "the record is not clear on the amount oftime expended" in hiring and discharging pickets and overseeing their du- ties. Their repetition of long portions of their original decision does not and cannot obscure the fact that they now assert that they definitively ruled on the eligibility of all union label staff personnel on the basis of a record which they characterized as "not clear." I regard my colleagues' claim that they ruled on all eligibility issues on the basis of a record which is not clear to be legally indefensible. Query: Did my clairvoyant colleagues rely on their intuition in deciding the eligibility issues as to all union label staff personnel? Nor do I agree with my colleagues that "it is totally irrelevant" that the parties were erroneously advised that the Board had approved the refusal to accept chal- lenges. And I cannot agree with my colleagues' obser- vation that the Regional Director's "inquiry does not elevate the matter to a question to be answered by the Board Members themselves." It is my conviction'that a question posed by a Regional Director either should be referred by the Executive Secretary to the Board Members for an answer, or should be referred back to the Regional Director without an answer. I think it improper for the Executive Secretary's Office to pro- pound answers which are then understood by the Re- gional Director and the parties to reflect action by a majority of the Board Members. It was ill advised for the instructions to have been issued without consulting all Board Members who par- ticipated in this case. The Act provides in Section 3(b) that the Board may delegate its authority to a panel of three or more Board Members, and the Board may delegate certain authority in representation matters un- der Section 9 of the Act to its Regional Directors. Nowhere in the statute is any provision made for dele- gation of decision-making authority to the Executive Secretary's Office. Prior to the count of the mailed ballots, Counsel for the Employer informed the Board Agent that he intended to challenge the ballots of all employees who had voted, basing such challenges on their alleged supervisory and managerial status. He was told, with Board approval, that challenges so based would not be accepted inasmuch as the issue of the status of the employees had been fully litigated and resolved by the Decision and Direction of Election . [Emphasis supplied ] My dissent should not be construed as criticism of the Regional Director. Manifestly, he understood from the telephone conversation that the Board had directed him to refuse to accept the challenges. APPENDIX Prior to the count of the mailed ballots, Counsel for the Employer informed the Board Agent that he in- tended to challenge the ballots of all employees who had voted, basing such challenges on their alleged supervisory and managerial status. He was told, with Board approval, the challenges so based would not be AMALGAMATED CLOTHING WORKERS OF AMERICA accepted inasmuch as the issue of the status of the employees had been fully litigated and resolved by the Decision and Direction of Election. The tally of ballots showed nine votes for the Petitioner and no votes against, with six ballots challenged on different grounds. A majority of the valid votes had been cast for the Petitioner. On July 30, 1974, the Employer filed timely Objec- tions to the Election, a copy of which was served upon the Petitioner. The objection alleges that the Regional Director violated Section 102.69(a) of the Board's Rules and Regulations by refusing to permit the Em- ployer to challenge ballots cast in the election. 101 In its objection to the election , the Employer again contends that all the Union Label Staff employees are supervisory and managerial, reasserting the position taken throughout the litigation which heretofor was considered and decided by the Board in its Decision and Direction of Election. Thereafter, the Employer filed a Motion for Reconsideration or Reopening of the Record, which was denied by the Board in its Order, dated July 12, 1974. Thus, the Employer is attempting again to relitigate these same issues. In view of the foregoing, it is clear that the objections filed by the Employer are without merit , and I recom- mend that they be overruled.