Victor Industries Corp. of California

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Victor Industries Corporation of California andInter- national Associatiod of Machinists and Aerospace Workers, AFL-CIO, District Lodge No . 190, Local Lodge No. 2182, Petitioner. Case 20-RC-12107 November 22, 1974 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 18, 1974, the Regional Director for Region 20 issued a Decision and Direction of Election in the above-entitled proceeding wherein he directed an elec- tion in the Petitioner's requested residual unit of all "office and quality control employees." Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's Decision on the grounds, inter alia, that in concluding that the two office employees involved are not confidential em- ployees and that the above unit is appropriate, he made findings of fact which were clearly erroneous and de- parted from Board precedent. By telegraphic order dated August 30, 1974, the re- quest for review was granted regarding the aforestated determinations of the Regional Director, and the elec- tion was stayed pending decision on review. 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 considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer contends that secretaries Alta Gre- gory and Annie Hannis are confidential employees and that, in any event, the unit combining them with qual- ity control employees, absent agreement of the parties, is inappropriate. The Employer is a California corporation engaged in the manufacture of toothpaste tubes. It has a relatively small complement of employees, about 100 of whom are production and maintenance employees currently represented by the Petitioner. The two office employees and two quality control employees petitioned for herein are the only remaining unrepresented employees. Gregory is secretary to the vice president and plant manager, Robert Wescoatt. Wescoatt, as the only cor- porate officer at the Chico facility, exercises general supervisory powers over the plant's operations, includ- ing hiring, firing, and participation in the grievance procedure. In 1971 he was the chief negotiator repre- senting the Employer in collective bargaining with the Petitioner for the unit of production and maintenance employees. Although the recent contract negotiations were headed by Robert Hoops, the corporate personnel director sent from the Employer's corporate headquar- ters in Cincinnati, Ohio, Wescoatt was also a member of the Employer's negotiating team. In addition to at- tending several of the actual negotiating sessions with the union representatives, he met daily with Hoops to discuss bargaining strategy, especially as to the noneco- nomic aspects of the contract. He signed the final con- tract on behalf of the Employer. As Wescoatt's secre- tary, Gregory types all of his correspondence, including that of a confidential nature sent to the corporate head- quarters; she opens incoming mail; and she has access to all the Employer's files. The Board defines as confidential employees those who "assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations."' Therefore, in view of Wescoatt's involvement in the setting of the Employer's labor relations policies and the fact that Gregory acts for him in a confidential capacity, we find that Gregory is a confidential employee. She may not, therefore, be included in the requested unit. Payroll and production clerk Annie Hannis, the only other secretary at the Chico facility, maintains time-' cards and payroll, production, personnel, and financial records. Although she assumes Gregory's duties in her absence, this occurs only sporadically. Moreover, there is no evidence indicating that she has ever acted in a confidential capacity for Wescoatt or anyone else with regard to labor relations matters. The mere fact that she has access to personnel records and to raw financial data, which might eventually be used by the Employer in a more composite form to determine the nature of its economic package offerings in labor negotiations, is insufficient ' to constitute her as a confidential employee.' We therefore affirm the Regional Direc- tor's finding. The quality control employees work in the plant's laboratory where they test the enamel thickness on the tubes. Although Hannis and the two quality control employees are separately supervised and there is no overlap in their work responsibilities, they have the same life and medical insurance and are under the same holiday and vacation program. Also, because of the close proximity of the office and laboratory, Hannis has daily contact with the quality control employees, espe- cially around a little kitchen adjacent to the laboratory which contains a coffeepot. Although the Board, in manufacturing establishments, normally does not com- bine office clerical and plant clerical employees in the I The B. F Goodrich Company, 115 NLRB 722, 724 (1956) 2 Hotel Employers Association of San Francisco, 159 NLRB 143, 150 (1966) 215 NLRB No. 7 VICTOR INDUSTRIES CORPORATION same unit, in view of the evidence that some mutual interests are shared by Hannis and other employees of the Employer's relatively small plant complement, we shall include Hannis as part of the requested residual unit. Moreover, if she were excluded, she might become the only unrepresented employee in the plant and thus effectively be denied the opportunity to be represented in collective bargaining.' Hannis and the two quality 3 Standard Brands Incorporated 175 NLRB 734 (1969). 49 control employees, therefore, constitute an appropriate residual unit herein. Accordingly, we shall remand the case to the Re- gional Director in order that he may conduct an elec- tion pursuant to his Decision and Direction of Election, as modified herein, except that the eligibility payroll period therefor shall be that immediately preceding the date of this Decision. [Excelsior footnote omitted from publication.]