Prince Gardner, Division of Swank, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prince Gardner, Division of Swank, Inc. and Amalga- mated Meat Cutters and Butcher Workmen of North America, Local Union No. 88, AFL-CIO, Petitioner. Cases 14-RC-8364 and 14-RC-8366 August 3, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 24, 1977, the Regional Director for Region 14 issued a Decision and Direction of Election in the above-entitled proceeding in which he directed separate elections among employees in two units: All office clerical employees employed at the Employer's St. Marys, Missouri, facility, includ- ing time study cost analysts, EXCLUDING all production and maintenance employees, pattern makers, truck drivers, payroll control clerks, confidential employees, professional employees, guards and supervisors as defined by the Act, and all other employees. All production and maintenance employees em- ployed at the Employer's St. Marys, Missouri, facility, including pattern makers, truck drivers, and payroll control clerks, EXCLUDING office clerical employees, time study cost analysts, professional employees, confidential employees, guards and supervisors as defined by the Act, and all other employees. Thereafter the Employer and the Petitioner, in accordance with the National Labor Relations Board's Rules and Regulations, as amended, filed timely requests for review of the Regional Director's decision on the grounds that he made findings of fact which are clearly erroneous and that he departed from officially reported precedent. By telegraphic order dated April 19, 1977, the National Labor Relations Board granted, in part, the requests for review by the Petitioner and the Employer. The Petitioner's request was granted insofar as it excepted to the decision by the Regional Director to include the payroll control clerks in the production and maintenance unit, rather than in the office clerical unit, and to exclude the personnel assistant from the office clerical unit as a confidential employee. The request for review by the Employer was granted insofar as it excepted to the Regional Director's decision to include the personnel depart- ment receptionist in the office clerical unit, rather than excluding her as a confidential employee, and to 231 NLRB No. 14 include the work-in-process clerk in the office clerical unit, rather than in the production and maintenance unit. The Board stayed the election in the office clerical unit pending final unit placement determinations on review. The election in the production and mainte- nance unit was directed, and the Board permitted the payroll control clerks and the work-in-process clerk to vote subject to challenge in that election. 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. After carefully reviewing the record herein, we have decided to reverse the Regional Director's determination on the payroll control clerks and include them in the office clerical unit because of their close community of interest with other employ- ees in that unit; to reverse the Regional Director's determination as to the status of the personnel department receptionist and exclude her from the office clerical unit as a confidential employee; and to affirm the Regional Director's exclusion of the personnel assistant from the office clerical unit as a confidential employee, and his inclusion of the work- in-process clerk in the office clerical unit rather than in the production and maintenance unit. Payroll Control Clerks. The Employer is a Dela- ware corporation engaged in the manufacture and nonretail sale of small personal leather goods. The St. Marys facility employs over 650 production workers, most of whom are paid by the piece pursuant to an incentive plan. An operations ticket accompanies each lot of work through the production area. The ticket shows, among other things, the operation number, the money amount that is paid for each job or operation, the job description, and the series, quantity, and style of the items in the lot. As the operators do their particular job, they detach the piecework ticket that corresponds to their job, fill in their clock number, number the pieces they have processed, and turn in the tickets at the end of the day. The operations are listed on the operations ticket in the sequence in which they must be performed to complete the item. The employees compute their own earnings and post them on a distribution card which is then added to their payroll file. Each job classification has a base rate of pay, and anything earned over that on the incentive plan is added. When a piecework ticket is lost, or not printed, or a rate of pay is changed, or an employee is out of position on the production line at an unfamiliar job, an authorization must be obtained. The Employer asserted that there has be n widespread disparity in the coding of job tickets, authorization of multiples 96 PRINCE GARDNER (replacement tickets), and application of rate chang- es. The Employer attributed the lack of uniformity to misinformation, inadvertent error, and possible cheating. Evidence was offered at the hearing to show that this problem put an undue burden on the 11 payroll clerks in the office who post the earnings in the employees' files. Other evidence indicated that the production supervisors were being called upon to make ticket adjustments and authorize changes, a function which tended to interfere with their ability to perform their own jobs. In an attempt to solve the timecard problem, the Employer implemented a pilot program. That pro- gram, according to the Employer, enlisted the services of the payroll supervisor, Betty Kimmich, to act as a payroll clerk in the production area. By stationing her there, she was available to production employees for authorization of changes and spot auditing. Although the experiment was short-lived, in the Employer's view it was a success. In February 1977, the Employer hired six new employees to be trained for 6 months as payroll control clerks to be stationed in the production area. The Regional Director determined that the payroll control clerks should be placed in the production and maintenance unit since they spend most of their time in the production area. The Employer contends, on the other hand, that the payroll control clerks share other more crucial characteristics with the office clerical employees, such as common supervision and a similarity of benefits and job function, and, therefore, they should be placed in the office clerical unit. We agree with the Employer. Even discounting the alleged job interchange between the payroll control clerks and the regular payroll employees which the Employer claims is imminent, but of which there is no evidence, the payroll control clerks, in our view, have a closer community of interest with the office clerical employees. The payroll control clerks, like the payroll clerks, are supervised by the payroll supervi- sor, are paid on the same basis as other office clerical employees, and receive similar benefits. Further- more, the record establishes that the sole reason the control clerks are in the production area is because it is more efficient to correct the production tickets on the production line than it is to wait until an ' The Employer presented testimony demonstrating its intention to rotate the payroll control clerks in their placement on the production line so that the) do not have an opportunity to become familiar with any individual production worker. a The Regional Director addressed himself in a footnote to the request by the Petitioner that the payroll penod for eligibility be extended to a time prior to the filing date of the petitions on the ground that the Employer hired six payroll control clerks after the filing of the petitions, in an attempt to pad the voting unit with newly hired employees. The Regional Director concluded that the payroll control clerks were appropriately included in the erroneous ticket is computed on a timecard and the mistake becomes less likely to be caught. Based on the foregoing, we find that the payroll control clerks are concerned exclusively with effi- cient earnings reporting, a payroll task, and not with any aspect of the production process. Therefore it is clear to us that the interests of the payroll control clerks in efficient reporting may come in conflict with the interests of the production employees.' Accordingly, we conclude, contrary to the Regional Director, that the payroll control clerks are office clerical functionaries who, like other payroll clerks, should be included in the office clerical unit.2 Personnel Assistant: The personnel assistant, Peggy Kriete, performs a wide range of administrative and clerical duties for Personnel Manager Buehler. The personnel manager is head of personnel at the St. Marys plant, which as noted above employs over 650 production employees. It is clear from the record that the personnel manager participates in the formula- tion, determination, and effectuation of policy with regard to labor relations. Testimony indicates that his duties include attendance at high level meetings, decisionmaking concerning disciplinary actions, changes in policy, evaluation of the effectiveness of personnel policies and practices, and layoffs, recalls, hiring, and firing. He also reviews work histories and attendance records of the employees at the facility. The personnel assistant and the personnel depart- ment receptionist are the only employees who work directly for the personnel manager. All the files are confidential and only these two employees, plus the personnel manager, have access to them. The record shows that among her duties the personnel assistant types reprimands, occasionally attends meetings, compiles confidential reports, and updates personnel files in response to recalls, layoffs, and disciplinary actions. Based on longstanding Board precedent which defines a confidential employee as one who assists in a confidential capacity a person who formulates, determines, and effectuates policy in regard to labor relations, or regularly substitutes for someone having these duties, the Regional Director determined that Peggy Kriete should be excluded from the office clerical unit.3 After carefully reviewing the record herein which discloses that the personnel assistant does function in a confidential capacity to the production and maintenance unit consisting of approximately 657 employ- ees, and that, therefore, there was no basis for departing from longstanding Board procedure in this regard. The request was therefore denied. Although we find that the payroll control clerks are appropriately included in the smaller office clerical unit, there is no evidence to support an inquiry into the intentions of the Employer in choosing that particular time to hire the new clerks. I See The B. F Goodrich Company, 115 NLRB 722 (1956); Weyerhaeuser Company, 173 NLRB 1170(1968). 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel manager, who formulates, determines, and effectuates labor relations policy, we conclude on review that the Regional Director properly excluded the personnel assistant from the office clerical unit as a confidential employee. Personnel Department Receptionist: The personnel department receptionist, Leona Riney, works with the personnel assistant on confidential matters. According to the testimony of the personnel manag- er, the two personnel employees are interchangeable; their job responsibilities differ only slightly. They have equal and exclusive access to confidential files and are distinguished by the specific tasks they perform, not by the nature of their work. The Regional Director evaluated the position of the receptionist and included her in the office clerical unit. He based his decision on two factors: that the receptionist spends only 25 percent of her time actually substituting for the personnel assistant; and that the evidence was not sufficient to show that she assists the personnel manager in a confidential capacity. However, the Petitioner contends that Riney also acts as a secretary to the personnel manager, typing disciplinary reports, working with layoff and recall materials, and filing personnel data. We agree with the Petitioner. The Regional Director's reliance on the percentage of time the receptionist actually substitutes for the personnel assistant is misplaced. Such an inquiry is necessary when the employee in question merely substitutes for the confidential employee without being in a confidential position himself.4 In our view, Riney's own work is sufficiently confidential to be evaluated on its own merit. Many of her tasks are the same as, or supplemental to, those performed by the assistant, and a confidential relationship is establish- ed by record testimony which reveals the integral relationship between Riney's work and the personnel manager's implementation and development of labor relations policy. Under similar circumstances, the Board has stated that "no inquiry need be made into the amount of time the employee actually spends in duties connected with labor relations." 5 In our view, the fact that an employee does not work on the most important confidential material is insufficient to make her job any less confidential in nature. If it can be shown, and we believe it has been here, that the employee in question acts in a confidential capacity to a labor relations policymaker, then the criteria for confidential status have been met. The narrow test of confidential status as stated in the Board's decision in B. F. Goodrich, supra, includes employees like Meramec Mining Company, 134 NLRB 1675 (1961). Bechtel Incorporation, 215 NLRB 906, 907 (1974). See also West Chemical Products, Inc., 221 NLRB 250(1975). Riney who perform in a confidential capacity to one who formulates, determines, and effectuates labor relations policy. The fact that Kriete and Riney are the only administrative/clerical workers in the personnel office, and work separately from other office workers, emphasizes the fundamental confi- dentiality of the jobs they fill. Accordingly, we shall exclude the personnel department receptionist from the office clerical unit. Work-in-Process Clerk: Helen Armbruster, the work-in-process clerk who was included in the office clerical unit by the Regional Director, is responsible for maintaining a "short list" of special orders and rush jobs, and for providing a quick source of information concerning the progress of these orders. Armbruster spends 50 percent of her time at her desk in the general office area working on the update of the list, and 50 percent of her time at a centrally located desk in the production area tracking down orders and collecting progress data. Until 1973, Armbruster was a full-time office clerk. The work-in- process list was added to her responsibilities at that time; however, her pay, benefits, and insurance remained similar to other office employees. Although the work-in-process clerk has been referred to as an expediter, a position usually categorized as plant clerical, the record shows that she is not called upon to provide any service to the production process. In our view, she performs a strictly office clerical function and unavoidably comes in contact with employees in the production area only when she is gathering information necessary to update the "short list" for management. Accordingly, upon review of all the evidence, we find that the Regional Director properly included Helen Armbruster in the office clerical unit. We shall therefore direct an election in the following unit of employees which we find to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office clerical employees employed at the Employer's St. Marys, Missouri, facility, includ- ing timestudy cost analysts, payroll control clerks, and work-in-process clerks, but excluding all production and maintenance employees, pattern- makers, truckdrivers, confidential employees, and professional employees, guards, and supervisors as defined in the Act, and all other employees. [Direction of Election and Excelsior footnote omitted from publication.] 98