Intermountain Rural Electric Association

INTERMOUNTAIN ELECTRIC ASSN. 1 Intermountain Rural Electric Association and Inter- national Brotherhood of Electrical Workers, Local No. 111. Cases 27-CA-6151, 27-CA- 6280, and 27-CA-6305. 29 October 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 8 January 1981 the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding 1 finding that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by unilaterally abrogating terms of a collective-bar- gaining agreement with the Union concerning the allocation of pension plan dividends; failing to comply with the Union's requests for information regarding its decision to change the application of pension funds; suspending and discharging Kather- ine Tate and issuing a written reprimand to Kath- leen Gunton because they engaged in protected concerted activities; threatening employees with suspension or discharge because of their union sympathies and activities; interrogating employees; linking employees' economic benefit to the absence of the Union and their economic detriment to the Union; and warning employees that unionization would be futile. The Board ordered the Respond- ent to cease and desist from these unlawful activi- ties and to take certain affirmative steps to remedy the effects of its actions. Thereafter, the Respondent petitioned the United States Court of Appeals for the Tenth Circuit for review of the Board's Order and the Board filed a cross-application for its enforcement. On 16 April 1984 the court issued its decision,2 which sustained all of the Board's unfair labor practice findings and enforced all of the provisions of its Order except those pertaining to employee Tate. Although the court found substantial evidence supports the Board's conclusion that the Respondent suspended and discharged Tate in retaliation for her union ac- tivities, it found that the Respondent was entitled to relitigate its assertion that Tate was a confiden- tial employee. The court stated that the Respond- ent should not be barred from relitigating this issue during the instant unfair labor practice case simply because the same issue had been raised and litigated in an earlier and, according to the court's findings, unrelated representation proceeding . ' The court found that the Respondent presented sufficient evi- dence on the theory that Tate was a confidential 1 253 NLRB 1153. s 737 F.2d 754. secretary with a labor nexus that the Board could properly make a finding as to whether Tate falls into that category.3 Should the Board find that Tate is a confidential employee, the court held it would then be for the Board to decide the Re- spondent's further contention that confidential em- ployees fall outside the protection of the Act and that its actions involving Tate therefore cannot be held to violate the Act. Accordingly, the court re- manded the case to the Board for a determination on these issues. On 1 October 1984 the Board advised the parties that it had decided to accept the court's remand and that they could submit statements of position with respect to the issue of/Tate's confidential status. Thereafter the General 'Counsel filed a state- ment of position and the Respondent filed a brief on remand and a request for oral argument. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the record as a whole, the decision of the United States Court of Appeals for the Tenth Circuit remanding the proceeding, and the statements filed by the General Counsel and the Respondent.4 As stated above, the issue of Tate's confidential status was first considered by the Board during a representation proceeding . In a Decision and Di- rection of Election dated 21 March 1979 in Case 27-RC-5809 the Acting Regional Director found that Tate had been hired as the secretary to Direc- tor of Engineering Mike Deans approximately 3 months prior to the date of the hearing . Her duties consisted of typing and answering the telephone for Deans and others in the department, as well as regularly filling in at the Respondent's switchboard and occasionally performing work for Assistant General Manager Fred Williams. The Acting Re- gional Director concluded that the evidence pre- sented at the hearing demonstrated that Tate did not assist or act in a confidential capacity to any person who formulates, determines, and effectuates management policies with regard to labor relations. Accordingly, he included her in the unit . The Re- spondent filed a request for review of the Acting Regional Director's determination of Tate's status. 3 The court noted that the Supreme Court had issued its decision in NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981), after the parties had presented oral argument in the instant case. In Hen- dricks the Court reversed the Seventh Circuit and held that there is a rea- sonable basis for the Board's use of the "labor nexus" test for confidential employees. The Respondent had relied in substantial part on the Seventh Circuit's rejection of that test. 4 The Respondent's request for oral argument is denied as the record, statements of position , and briefs adequately present the issues and the positions of the parties. 277 NLRB No. 3 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board denied the Respondent's request on 12 April 1979. In the representation election held on 13 April 1979, the Respondent challenged Tate's ballot, as- serting that she is a confidential employee. The Acting Regional Director's Supplemental Decision on Challenged Ballots overruled the Respondent's challenge, finding that Tate's duties regarding con- fidential labor relations matters had not changed between the time of the representation hearing on 2 March 1979 and the date of the election 6 weeks later. On 17 August 1979 the Board affirmed the Acting Regional Director's determination with re- spect to Tate's ballot and denied the Respondent's request for review on this issue. The unfair labor practice allegations in this case include 8(a)(3) and (1) issues relating to Tate's sus- pension and discharge as well as certain threats made against her because of her activities in sup- port of the Union. In its defense against these alle- gations the Respondent contends that Tate was outside the protection of the Act because her posi- tion was of a confidential nature, thereby excluding her from the right to participate in union activities. Review of the record indicates that while the judge was reluctant to permit relitigation of Tate's confi- dential status, he nevertheless allowed the Re- spondent to introduce into' evidence the record of the representation case as well as other relevant evidence on Tate's employment status. The judge did not, however, make an independent assessment of her alleged confidential status, deciding instead that he was bound by the Board's previous repre- sentation case determinations . In view of the com- pleteness of the record now before us, it is neces- sary only to review this evidence to comply with the court's remand.5 Tate was hired in November 1978 as a secretary in the engineering department. She was referred to as the secretary to Director of Department Mike Deans, and was primarily responsible to him, but her duties encompassed the performance of general clerical tasks for others in the department as well. Testimony during the representation hearing estab- lishes that as of that time, 2 March 1979,6 Tate re- ceived and made records of telephone calls and visitors and typed for Deans and others in the engi- neering department. In addition she regularly filled in at the Company's switchboard when the opera- tor was on breaks. On occasion, when the secretary to Assistant General Manager Fred Williams was unavailable, Tate would type for him. There was also one instance when Tate took minutes of a staff 5 In their statements to the Board, no party has requested a further hearing. 6 Dates herein refer to 1979 unless otherwise designated meeting, attended by Williams, Deans, Director of Operations Cowan, and Supervisors Logos, Miller, and Schroeder, dealing with the Employer's pro- duction and maintenance unit employees. Tate tes- tified that she knew nothing about Deans' role in labor relations matters, that she did not type memoranda or correspondence concerning labor matters, that she did not accompany Deans to meetings concerning labor relations, that she did not type minutes of such meetings, and that Deans did not discuss with her the content of any such meetings he may have attended. Tate testified that she was told that information to which she had access was considered by the Company to be confi- dential.7 According to the Supplemental Report on Challenged Ballots, Tate indicated that following the election she typed a memorandum stating that the Respondent would deal with the Union at arm's length, another stating that the Respondent wanted to take meter readers out of the established unit and place them in the office and clerical 'unit, and a third stating that working as a janitor would not qualify as relevant experience toward the at- tainment of a position as either warehouseman or groundsman. These documents do not appear in the record." Deans9 stated that around the time of the repre- sentation hearing he had been involved in discus- sions with, others in management concerning the Respondent's position on the confidential status of Tate's job. He said that he had doubts then con- cerning the Respondent's position that Tate was a confidential employee and that he discussed with Tate the fact that management viewed her as a nonbargaining unit confidential employee. Howev- er, Deans also stated that he did not have any de- tailed discussions with Tate concerning her job duties. Sometime after the 2 March representation hearing Deans informed Tate that she had a new job description. The document dated 1 February was admitted into evidence at the unfair labor practice hearing. Despite the fact that Tate was Deans' secretary, Deans did not participate in for- mulating this job description. Instead, Deans re- called receiving the document from the office of General Manager Stanley Lewandowski some time r This refers to the engineering department 's possession of documents and information relative to the Respondent 's systems improvements, con- tracts with customer-users of the Respondent's underground and over- head facilities, information concerning substations and other equipment, and data concerning the Respondent's rebate program which involves substantial sums of money. a Tate testified that following the representation hearing Deans told her that he had been requested by Personnel Director Tom Riffe to have her type a memo dealing with any subject so long as it related to labor relations 9 Deans did not testify in person at the unfair labor practice hearing, but his deposition was submitted into the record. INTERMOUNTAIN ELECTRIC ASSN. 3 during the spring. According to Tate there were two new duties listed among her responsibilities: "Prepares confidential minutes taken at meetings involving highly sensitive labor relations matters" and "Prepares recommendations as provided by the Director of Electrical Engineering concerning con- fidential labor relations matters." Deans said that (luring her employment Tate typed three memoran- da which related to labor relations. One concerned meter readers' unit placement; another consisted of Deans' suggestions regarding field engineers; and the third related to draftsmen and wage recommen- dations. Deans could not recall when any of these memos were typed. None of them was produced or offered by the Respondent. Deans stated that he considered several of the matters with which Tate dealt to be confidential, such as employees' annual reviews, probationary reviews, and memos to su- pervisors concerning problems with employees. None of these types of materials was introduced as an example of her work product. ' ° Deans testified that Tate regularly took notes at the monthly engi- neering staff meeting." One memorandum typed by Tate which was in- troduced into evidence was from Richard Prahl, supervisor of engineering services, to Personnel Di- rector Riffe. The 3 March memo recommended that the Respondent take a "hard-nose" approach to bargaining with the office and clerical unit over health insurance benefits and extra holidays. Prahl stated that he was not solicited to provide sugges- tions at that time and that he had never before or since made recommendations of this nature. He did not explain what prompted him to pass along his suggestions in this instance. Deans testified that his job involved supervising the office engineering department, engineering services, overhead and underground field engineer- ing and drafting, and providing technical supervi- sion over district field engineers. Deans' only other reference to his duties was that after the represen- tation hearing he was requested to make recom- mendations on several items related to labor rela- tions. However he did not say who made this re- quest or how he responded to it. The assistant general manager of operations and engineering Fred Williams, Deans' direct superior, testified that since Deans had been in charge of the engineering department there had been only one 10 The Respondent did introduce examples of Tate's work for the pur- pose of demonstrating her deficiencies. These included departmental work orders and reports as well as correspondence for Deans The only item which did not relate strictly to the Respondent's business operations was a general letter of reference on behalf of a former employee of the engineering department i i Deans stated that this was not a supervisory meeting but included all employees in the engineering department contract negotiated, that being with the production and maintenance employees in the so-called "out- side" unit. Williams said that Deans' role in that negotiation was to recommend salary and language changes. He recalled one instance in which Deans, in response to his solicitation of suggestions, made a recommendation regarding the salaries of engi- neering aides. The Respondent's general manager Lewan- dowski testified that Deans was responsible for all engineering department personnel . He stated that these responsibilities included handling grievances and supplying information for negotiations. Specifi- cally, Lewandowski said that Deans reviewed the bargaining agreement covering the outside unit to check for problems in administering its terms, made suggestions concerning contract language, and at- tended strategy meetings. Lewandowski stated that because the outside contract was for a 3-year term, Deans did not have occasion within the past year to be involved in bargaining matters. Lewandowski did not cite specific examples of Deans' input prior to entering into that agreement. Lewandowski tes- tified that it was possible that Deans could play a role at the bargaining table in future negotiations. There is no evidence that Deans had sat at the bar- gaining table in the past or that he has done so since the date of the hearing.12 A memorandum dated 12 April from Lewandowski to several de- partment heads outlined those individuals' respec- tive areas of responsibility with regard to labor re- lations.13 This memo substantially reiterates Lewandowski's description of Deans' duties and concentrates on what Deans' future responsibilities might entail should the office and clerical employ- ees choose union representation. Lewandowski stated that this document was prepared in response to questions raised by the election petition filed in the office and clerical employee unit and was de- signed to shed light on the status of the secretaries to those department heads. The Board's long-established test for determining whether an employee possesses confidential status is whether that employee "assist[s] and act[s] in a confidential capacity to persons who formulate, de- termine, and effectuate management policies in the 12 The Respondent has not asserted either before the circuit court or in its statement of position now before the Board that Deans has assumed a more prominent role in negotiations with either the outside unit or the office and clerical unit. 13 The memo was directed to Williams, Manager of Office Services Steve Glaim, Riffe, Deans, Director of Member Relations and Energy Conservation Richard Kavulic, Director of Operations Spencer Cronk, and Assistant Director of Operations Ron Lewis A description of each of these individuals' responsibilities is set forth, states that all are consid- ered members of the negotiations strategy team if not actually present at the bargaining table, and is apparently meant to limit labor relations re- sponsibilities to those individuals. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field of labor relations." B. F. Goodrich Co., 115 NLRB 722, 724 (1956). This is termed the "labor nexus" test and its validity as an appropriate meas- ure of confidential status was endorsed by the Su- preme Court in NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981). Under this defi- nition it is insufficient that an employee may on oc- casion have access to certain labor related or per- sonnel type information. What is contemplated in- stead is that a confidential employee is involved in a close working relationship with an individual who decides and effectuates management labor policy and is entrusted with decisions and informa- tion regarding this policy before it is made known to those affected by it. Whether Tate's job was characterized by a relationship of this nature must now be assessed. Documentary evidence that Tate had access to the Respondent's labor policy formulation is limit- ed to a single memorandum from Supervisor Prahl to Personnel Director Riffe. There is no evidence that Prahl's regular duties included providing sug- gestions for bargaining strategies or contract con- tent. 114 Prahl stated that his suggestions were unso- licited, and there is no evidence that the Respond- ent accorded them any consideration. This one- time voluntary memo is insufficient to qualify Prahl as one who formulates, determines, and effectuates labor relations policies. Moreover, there is no evi- dence of what other work, if any, Tate performed for Prahl. Based on these facts the working rela- tionship between Tate and Prahl falls far short of displaying confidential characteristics. Testimonial evidence indicates that during her approximately 8 months of employment with the Respondent, Tate typed three memoranda for Deans dealing with labor or personnel matters 1 s and that she took minutes at one management staff meeting (apparently substituting for Williams' absent secretary) concerning the Respondent's pro- duction and maintenance employees.16 Tate's unre- futed testimony establishes that her work did not regularly include labor relations matters. The three memos therefore appear more notable by their in- frequent nature than by their serving as examples of Tate's typical responsibilities. While Tate's re- vised job description states that she regularly dealt with confidential labor relations matters, there is no substantiation that this was the case. While this dis- i* Prahl was not among the recipients of Lewandowski's 12 April memo directed to all those having labor relations responsibilities. 15 As stated earlier these memos were not introduced into evidence. They were not described in any more detail than the previous discussion provides. 16 The minutes were not introduced into evidence . There was no testi- mony concerning the specific topics discussed at this meeting other than that it involved production and maintenance unit employees crepancy may be attributable to the fact that the job description was not prepared by her immediate supervisor, the fact remains that it serves little pro- bative value in assessing Tate's status, standing merely as an uncorroborated statement.17 Tate testified that she was unaware of what role Deans played in the conduct of the Respondent's labor relations. Lewandowski's 12 April memoran- dum outlining various individuals' labor relations responsibilities depicts Deans and six other persons as having significant labor relations involvement. However, much like Tate's revised job description, there is no supporting evidence-testimonial or documentary-that Deans actually held appreciable labor relations responsibility. Deans' account of his labor relations duties was general. He cited his overall responsibility for his department, his attend- ant role in evaluating employee performance and handling discipline matters, and that he had been requested (during the organizational campaign of the office employees) to make "recommendations on several items related to labor relations." He was not specific in describing the three memos, referred to above, other than by the fact that one dealt with meter readers, another with draftsmen, and a third with field engineers. The only evidence that Deans took part in the collective-bargaining relationship with the "outside" unit was Williams' recollection that Deans had made a recommendation on the wages of engineering aides. While Lewandowski asserted that Deans had responsibility for handling grievances, Deans did not include this as among his duties nor did he mention typing grievance reports as one of Tate's responsibilities. It appears, there- fore, that the array of labor relations responsibil- ities attributed to Deans in the 12 April memo does not comport with the evidence of what his duties were in practice. In this case it is incumbent on the Respondent to provide the evidence on which it has based its as- sertion that Tate is a confidential employee. We conclude that the evidence before us fails to estab- lish that Tate acted in a confidential capacity to anyone having the responsibility of formulating, de- termining, and effectuating labor policy for the Re- spondent. Deans' duties have not been shown to have consisted of more than an occasional contri- bution to possible management decision-making- clearly inadequate to show personal responsibility or regular involvement in the labor policy function. His relationship with Tate, most importantly, fails to exhibit any evidence of sharing of management policy development or entrusting her with informa- 14 Tate's original job description was not discussed on the record nor were the duties of Tate's predecessor. INTERMOUNTAIN ELECTRIC ASSN. 5 tion relative to labor relations formulation . A single dential employee with a labor nexus . 18 We reaffirm instance of note-taking at a management meeting the Board's previous Decision and Order. and typing three memos of uncertain labor policy content simply are inadequate to provide a basis for ORDER finding that Tate served in a confidential capacity The Board's original Decision and Order is reaf- for the Respondent. Accordingly, we find that firmed. Katherine Tate has not been shown to be a confi- 18 In view of our determination of this question it is unnecessary to reach the issue of whether the Act's protections extend to confidential employees