National Cement Co., Inc.

NATIONAL CEMENT CO., INC. 1039 National Cement Company, Inc. and United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Petitioner. Case 10-RC-10803 March 23, 1977 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 8, 1976, the Regional Director for Region 10 issued a Decision and Direction of Election in the above-entitled proceeding in which he found that two employees employed at the Employ- er's Ragland office were not confidential employees and were accordingly included in the office clerical unit found appropriate for purposes of collective bargaining. Thereafter, in accordance with Section 102.67 of the Rules and Regulations, Series 8, as amended, of the National Labor Relations Board, the Employer filed a timely request for review of the Regional Director's decision on the ground, inter alia, that in failing to find the two employees to be confidential employees who would be excluded from the appropriate unit he departed from Board prece- dent. By telegraphic order dated November 2, 1976, the Board granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review and makes the following findings: The Employer is engaged in the manufacture and sale of cement. In the course of its operations, it maintains an office at its Ragland, Alabama, plant, where it employs three office clerical employees, among whom are Dorothy Noah, secretary to Robert Toler, vice president and plant manager, and Gaylon Brown, secretary to Charles Ford, the personnel manager. The Employer seeks to exclude from the appropri- ate unit both Noah and Brown on the basis that they perform work of a confidential nature. The Regional Director, relying on a 1972 Decision and Direction of Election involving the same unit wherein both employees were found not to be confidential employ- ees, concluded that there was no evidence of other duties that would render either Noah or Brown a confidential employee and, accordingly, included them in the unit. The Employer asserts that the Regional Director's reliance on the 1972 case ignored the present record and that the inclusion of these employees in the appropriate unit contravenes the Board's established policy. We find merit in the Employer's contention with regard to Noah. The record discloses that Toler, in his capacity as vice president and plant manager, sits in on negotia- tions and is responsible for the handling of labor relations including grievances and the settlement of minor disputes. Noah, in her capacity as secretary, performs a wide range of clerical duties including the typing of the daily and monthly production reports, answering the phone, and distributing the mail. She also types correspondence concerning reprimands, grievances, and discharges, opens and sorts Toler's mail unless it is specifically marked confidential, and has access to Toler's files. Upon the foregoing, we conclude that Noah acts in a confidential capacity to Toler, a person involved in formulating, determining, and effectuating the Employer's labor relations policies, and that she is a confidential employee as defined by the Board.' Accordingly, we shall exclude her from the unit found appropriate. With regard to Brown, although she performs general secretarial functions for Personnel Manager Ford, the record fails to disclose that she assists Ford in any way vis-a-vis his role in the formulation, determination, and effectuation of the Employer's labor relations policies.2 Accordingly, we find that she is not a confidential employee as defined by the Board and shall include her in the unit found appropriate. The case is hereby remanded to the Regional Director for Region 10 for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that ending immediately before the date of issuance of this Decision on Review. [Excelsior footnote omitted from publication.] I The B F. Goodrich Company, 115 NLRB 722 (1956); West Chemical in connection with labor relations in the past year and that when he wants Products, 221 NLRB 250 (1975). his notes from negotiating and grievance committee meetings typed he does 2 Personnel Manager Ford testified that Brown had not done any typing them himself. 228 NLRB No. 125