Austin Cablevision

AUSTIN CABLEVISION 535 American Television and Communications Corpora- tion d/b/a Austin Cablevision, ' Employer-Peti- tioner and Communications Workers of Amer- ica, AFL-CIO. Case 23-UC-126 28 April 1986 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 17 August 1984 the Employer filed a petition to clarify whether salesclerks should be included in the existing clerical unit. After a hearing before a hearing officer of the National Labor Relations Board, the Acting Regional Director for Region 23 issued on 19 October 1984 a Decision and Order dismissing the Employer's petition. The Acting Re- gional Director held that the petition was inappro- priate because the salesclerk position existed prior to the parties entering into their then-current bar- gaining agreement and because the position had been excluded for over 2 years. In addition, the Acting Regional Director held that salesclerks do not share a sufficient community of interest with the existing unit to be included through unit clarifi- cation proceedings. The Union timely requested review, and the Em- ployer filed an opposing brief. On 8 July 1985 the Board granted the request for review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case and makes the following findings. The Employer provides cable television service from its place of business in Austin, Texas. In 1974 the Union was certified as the exclusive bargaining representative in a unit comprising all office cleri- cal employees working for the Employer's prede- cessor. Earlier the Union was certified for a sepa- rate unit of service, maintenance, and installation employees. The August 1978 to October 1981 bar- gaining agreement between the Union and the predecessor recognized the Union as representative of the office clerical, service, maintenance, and in- stallation employees. The agreement set wage schedules for the following clerical unit employees: telephone clerks, cashiers, dispatchers, and records clerks. On 1 September 1981 the Employer purchased the business and assumed the existing bargaining agreement with the Union. When the agreement expired in October 1981, the Union conducted a strike that lasted until June 1982. After its takeov- er, the Employer reorganized the business. It cre- ated distinct departments, remodeled the building, and increased the number of employees, supervi- sors, and management officials. In January 1982 the Employer created the salesclerk position to work exclusively in the sales or marketing department. From its takeover, throughout the strike, and after the strike, the Employer engaged in extensive ne- gotiations with the Union. On 15 October 1982 the Employer and the Union reached an agreement ef- fective through 31 July 1985. The agreement con- tains the same clause recognizing the Union as the exclusive representative of all office clerical em- ployees. Unlike the prior agreement, the 1982-1985 agreement does not refer to separate clerical posi- tions but refers only to customer service represent- atives (CSRs). The Employer seeks a determination that the salesclerks are not part of the existing clerical unit. The Union contends that the bargaining unit com- prising "all office clerical employees" should in- clude the salesclerks. The Acting Regional Direc- tor found that the salesclerks should not be includ- ed in the unit and that the petition should be dis- missed . We reverse both findings. Prior to the Employer's reorganization, salesper- sons, who were not represented by the Union after 1976, did not have their own clerical help but relied on unit clericals. The Employer set up a sep- arate sales or marketing department after it took over the business in September 1981. The number of salesclerks has fluctuated from three to five since the position was created in January 1982. The Employer never informed the Union that it had created the salesclerk position. The Union first learned about the position after the strike when it signed up salesclerk McCullen. McCullen was hired full time in March 1982 and worked during the strike behind the picket line. In July 1982 a union steward signed up McCullen for dues check- off. The record is silent whether this dues authori- zation was ever submitted to the Employer. McCullen testified that she began paying dues out of her pocket. In any event, the Employer did not inform the Union at this time that McCullen was outside the unit. McCullen signed another checkoff authorization in July 1983. On 4 January 1984 the Union sent McCullen's name to the Employer on a list of employees authorizing dues checkoff. On 9 January 1984 the Employer told McCullen that it did not recognize the Union as bargaining repre- sentative of the salesclerks. In January 1984 the Union filed a grievance re- garding a salesclerk. At the 21 February 1984 grievance meeting, the Union disagreed with the ' The Employer-Petitioner's name was amended at the hearing Employer's assertion that salesclerks are not part of 279 NLRB No. 75 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit. Prior to arbitration of the grievance, the Employer obtained a restraining order pending the outcome of its unit clarification petition. The Union subsequently withdrew the grievance. The parties did not discuss the salesclerk position during negotiations. Early in the negotiations the Employer proposed that the clerical job titles in the prior contract be incorporated into a new cus- tomer service representative title . In an 8 Decem- ber 1981 counterproposal the Union stated that it would agree to "roll up Tel. Clk., Cashier, and Rec. Clk. into a single clerical classification." The customer service representative title was included in the new contract. The contract also provided that pay raises would be based on job testing and that a customer service representative would be slotted in a particular pay grade based on the number of functions the employee could perform. Shortly before the end of negotiations, the Em- ployer prepared a document placing employees in grade according to the slotting system. The slotting document lists some 60 employees as either cus- tomer services, credit and collection, or data proc- essing CSRs. After comparing the effect for a sam- pling of employees, the Union reluctantly accepted the slotting document. In 1976 the Union agreed to exclude the payroll clerk (also called records clerk) if the general man- ager made her his confidential secretary. Some time later the Union agreed to exclude another confidential secretary. After the Employer took over the business, the payroll clerk stopped per- forming secretarial duties; the clerk assumed the accounts payable position created in January 1982. The Employer also created a purchasing clerk po- sition in October 1981, an engineering clerk posi- tion in early 1982, and an accounting clerk position in early 1984. The Union was unaware of the changes and new positions until the hearing.2 Generally, the Board will not clarify a unit de- fined by contract during the contract's midterm to include an excluded position in existence before the contract was signed because to do so would disrupt the bargaining relationship. Monongahela Power Co., 198 NLRB 1183 (1972); Wallace-Murray Corp., 192 NLRB 1090 (1971). In the instant case, the parties did not discuss the salesclerks' status during negoti- ations. The contract does not explicitly exclude salesclerks, and its unit description including all office clericals is sufficient to encompass sales- clerks. The contract does not mention salesclerks or other particular clerical positions, which were 2 In its posthearing brief, the Union contended that these positions should be included in the unit The Acting Regional Director found, properly, that the contention was outside the scope of the pending peti- tion "rolled up" into the customer service representa- tive position. The actual dispute over whether the customer service representative position includes salesclerks did not arise until after the contract had been signed. Contrary to the Employer's contentions, the Union neither tacitly agreed to nor acquiesced in the salesclerks' exclusion from the unit. The Em- ployer did not inform the Union that salesclerks ex- isted. The Union apparently first learned of their existence when in July 1982 it signed up a sales- clerk. The Union, however, had no reason to be- lieve the salesclerks were not encompassed within the customer service representative title. When the Union agreed to "roll up" existing clerks into the CSR title, the Employer had not yet created the salesclerk position. The Employer did not inform the Union of its position that salesclerks were not in the unit until January 1984. Prior to the contract's execution, the Union did agree to the Employer's proposed slotting docu- ment, which listed 60 clericals, but no salesclerks. The purpose of the slotting document was not, however, to delineate the unit. In addition, as the document listed all employees as customer service representatives, it could not have alerted the Union to the Employer's position that salesclerks were to be excluded from the unit. The document also would not have alerted the Union to any other clerical position about which the Union was un- aware. The Union never agreed to a fragmented clerical unit. The only clericals it agreed to exclude were those it believed acted as confidential em- ployees. Thus, the contract's recognition clause for all office clericals has not been vitiated by any action taken by the Union. The Union has not acquiesced in the Employer's position through neglect or inaction. The Employ- er created and staffed the salesclerk position during the strike. As the Union ended the strike without obtaining a bargaining agreement, its primary goal was to reach agreement, rather than to enroll em- ployees who had worked during the strike. Despite these obstacles, the Union did enroll salesclerk McCullen, did discuss work-related problems with her, and did pursue a grievance regarding another salesclerk. The Union treated salesclerks as unit members. In addition, the Employer was undergo- ing an expansion and reorganization throughout the period in issue. Based on the above, we find that the salesclerks have not been historically excluded from the unit. Cf. Plough, Inc., 203 NLRB 818 (1973). We also find that salesclerks have not been contractually excluded and that the Union has not waived its rights to represent the salesclerks by failing to AUSTIN CABLEVISION secure their inclusion in the bargaining agreement. Accordingly, we reverse the Acting Regional Di- rector's dismissal of the petition. For the following reasons, we also reverse the Acting Regional Director's conclusion that sales- clerks have an insufficient community of interest with other clerks to be included in the existing unit. The Board will not accrete employees whose unit status is in issue into an existing unit if the em- ployees could constitute a separate appropriate unit. Melbet Jewelry Co., 180 NLRB 107 (1969). Resolution of the issue turns on a community-of-in- terest determination . Customarily the Board does not find a segment of office clerical employees ap- propriate. Bank of America, 174 NLRB 101 (1969); Otis Elevator Co., 116 NLRB 262 (1956). We find no reason in the instant case to depart from this general rule. The Employer employs from 60 to 70 customer service representatives, all office clericals, in its customer service department, credit and collection department, and data processing department. Cus- tomer service department clericals spend most of their time on phone banks handling customer in- quiries and complaints. They assess the customers' problems, attempt to resolve routine ones, and refer the others to technicians. The credit and col- lection department and the data processing depart- ment clericals perform more typical clerical func- tions. The credit and collection clericals have less customer contact than customer service clericals; the data processing clericals have little, if any, cus- tomer contact. The Employer employs five salesclerks in its sales or marketing department to provide clerical support to sales representatives. They process the representatives' work orders and prepare daily sales reports, which the Employer uses to calculate the representatives' commissions. The salesclerks spend a little over half their time collating sales in- formation and making initial calculations for the sales representatives' payroll. Salesclerks do take calls from existing customers, who may use a sales representative's card to call the Employer about a problem. The salesclerks are expected to transfer the calls to the appropriate department. The sales- clerks also take calls `from potential customers. Based on the above, we find that the salesclerks' duties do not significantly differ from those of 537 other office clericals. Before their position was cre- ated, most of their duties were handled by unit em- ployees. Salesclerks handle phoned-in requests for installations or for inquiries about obtaining service for sales representatives similarly to the way cus- tomer service representatives handle phoned-in re- quests about problems for the technicians to solve. They also process work orders for salesmen just as customer service representatives process work orders for technicians. Salesclerks must take the extra step of tabulating the sales representatives' payroll only because, unlike technicians, sales rep- resentatives receive commissions.3 Moreover, sales- clerks' functions are integrated with those of other clericals. Salesclerks pick up and process work orders generated by customer service representa- tives and prepare calculator tapes of sales informa- tion used by customer service representatives to make bank entries. The salesclerks work in a separate department, are separately supervised, do not interchange with other office clericals, and have little official contact with other office clericals. These factors are insuffi- cient in light of the functional integration to show that salesclerks have a separate community of inter- est from other clericals. Bank of America, supra. All clerical employees, including the salesclerks, share the same breakroom, work approximately the same hours, and receive substantially the same ben- efits. Differences in pay and benefits between sales- clerks and other clericals is largely based on the Employer's position that salesclerks are not in the unit and are, therefore, not covered by the bargain- ing agreement. Accordingly, we find that the position of sales- clerk shares a community of interest with unit office clerical employees and shall clarify the unit to include the position. ORDER The unit of all office clerical employees repre- sented by Communications Workers of America, AFL-CIO, at American Television & Communica- tions Corporation d/b/a Austin Cablevision is clarified to include the classification of salesclerk. 3 The Union historically agreed to the exclusion of the payroll clerk because that employee also served as a confidential secretary to the man- ager