Curtis Noll Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1447 (N.L.R.B. 1975)

CURTIS INDUSTRIES DIVISION OF CURTIS NOLL CORPORATION 1447
Curtis Industries , Division of Curtis Noll Corporation
and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW). Case 8-CA-8365
June 30, 1975
DECISION AND ORDER
On October 30, 1974, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief to the General Counsel's excep-
tions.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
We agree with the Administrative Law Judge that
based on the Supreme Court's holding in N. L. R. B. v.
Bell Aerospace Company, Division of Textron, Inc.,
416 U.S.' 267 (1974), the management trainees
involved herein are not covered by the protection of
the Act.
All of the management trainees either advance into
management positions or leave the Respondent's
employ. Management trainees are recruited and
hired because of their special educational back-
grounds; accept employment with a designated
managerial goal in mind; remain with the Employer
only if they successfully complete the program; are
paid a substantially higher rate of pay than regular
employees in equivalent positions; and have dissimi-
lar conditions of employment from those of regular
employees. Moreover, the management trainees are
given the same fringe benefits as supervisors and
managerial employees rather than those enjoyed by
regular employees.
Inasmuch as these management trainees have been
shown to have no alternatives other than to be placed
in management positions ultimately or to leave the
employ of the Employer, we agree with the Adminis-
trative Law Judge that their interests are aligned with
management rather than with regular employees and
that, therefore, they are part of management under
the decision of the Supreme Court in Bell Aerospace,
supra.
Our dissenting colleague argues that because "their
present job responsibilities [consist] solely of non-
discretionary rank-and-file work," their status as
management trainees is not "inconsistent with their
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
218 NLRB No. 222
participation in a labor organization." In our view,
however, the attitudes, outlook, sympathies, and
orientation of the management trainees are likely to
be far more greatly influenced by the management
status for which they are training and which they
hope to receive in the near future than by the type of
work to which they are assigned for admittedly brief
periods as part of their training.
To hold otherwise, as our dissenting colleague
does, would allow these employees, who are being
prepared by the Employer for management positions,
to participate in a labor organization which would
create a conflict of interest with their job responsibil-
ities and announced training goals. The inevitable
result of such a contrary holding would be to
diminish the Employer's right to select and control
its own managerial representatives.
In agreement with the Administrative Law Judge,
we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER FANNING, dissenting:
I cannot agree with the majority that employees
classified as "management trainees" thereby lose all
their protection under Section 7 of the Act.
Since 1967, Respondent has hired certain "man-
agement trainees" with the expectation that they will
eventually step into management positions. Those
recruited for this purpose invariably have substantial
college training, if not a degree. Management
trainees, with very few exceptions, are paid more per
week than other office clericals. Management train-
ees participate in activities intended to acquaint them
with various aspects of Respondent's operations.
Management trainees spend a day or so with
salesmen in the field to learn the marketing aspects
of Respondent's operation. Further education in this
area is by special training sessions and assignment of
managerial trainees to undertake various special
projects. However, it should also be noted that, aside
from the occasional training devices described above,
there does not exist any separate formal course of
study for management trainees. Rather, they work
side by side with office clericals, performing the same
work, using the same equipment, and subject to the
convinces its that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same supervision and discipline. Furthermore, man-
agement trainees do not participate at all in manage-
rial or supervisory decisions. Finally, although the
management trainees are expected either to qualify
to fill a management position or leave, there is no
assurance that any of them will eventually attain a
management position. Of the 28 management train-
ees who have been in the program, less than half, 12,
have been promoted to management positions. Of
the rest , seven have left employment voluntarily,
three have been terminated, and six remain in the
program.
It is clear that "managerial" personnel are now
excluded as a class from the coverage of the Act, by
virtue of the Supreme Court's decision in N.L.R B. v.
Bell Aerospace Company, Division of Textron, Inc.,2
since the nature of their work aligns them more
closely with management than with employees.
Whether or not a person is "managerial" is to be
determined on a case-by-case basis after close
examination of the duties performed by the person in
question while occupying a position alleged to be
"managerial."3 The Board, in those post-Bell Aero-
space cases in which it has had occasion to pass on
the status of various personnel alleged by the
employer to be managerial,4 has carefully analyzed
all facets of the current job descriptions and
responsibilities of the personnel in question to
ascertain whether they fall within the definition of
"managerial employees"; i.e., "those who formulate
and effectuate management policies by expressing
and making operative the decisions of their employ-
er, and those who have discretion in the performance
of their jobs independent of their employer's estab-
lished policy." 5
This definition has been construed narrowly, as
indeed it should be because those people who fall
within it are to be denied substantial statutory rights.
Many employees whose job titles indicate on the
surface managerial status and whose job descriptions
call for a high degree of responsibility, e.g., systems
engineering project engineers6 and radio produc-
ers/directors ,7 have been found to be employees
rather than managerial personnel since they do not
exercise sufficient independent discretion or other-
wise effectuate management policies.
In contrast to these cases , no such analysis has
been made in the instant case . The Administrative
2 416 U S 267(1974)
3 As the Supreme Court specifically pointed out
Of course , the specific job title of the employees involved is not in itself
controlling Rather, the question of whether particular employees are
"managerial" must be answered in terms of the employees' actualjob
responsibilities , authority , and relationship to management [emphasis
supplied ]. [Id at fn 191
4 Westinghouse Broadcasting Company, Inc (KDKA-TV, Channel 2), 216
Law Judge and my colleagues have based their
decision to find management trainees to be manage-
rial employees solely on the theory that the working
conditions of management trainees are sufficiently
dissimilar from those of the rank-and-file office
clericals to justify their exclusion from an office
clerical unit. The Administrative Law Judge cites a
number of unit placement cases in which the Board
has excluded management trainees from rank-and-
file units as lacking a basic community of interest
with the rank-and-file employees. He also relies
heavily on the decision of the Regional Director in
the instant case to exclude the management trainees
from the office clerical unit. There may indeed be a
rational basis for such exclusion in any specific case,
given a higher wage scale, more stringent hiring
qualifications, or a heightened expectation of quicker
advancement. However, the mere fact that manage-
ment trainees may be excluded from an office
clerical unit is not at all dispositive of whether or not
they are "employees" for the purposes of Sections 7
and 8 of the Act. It is one thing to exclude a group of
workers from a rank-and-file unit based on their
unique qualifications and working conditions; it is
something else entirely to use such uniqueness as a
basis to deny them employee status and strip them of
their statutorily protected rights to organize for
mutual self-benefit.
Applying, as we must, the job analysis mandated
by Bell Aerospace to the management trainees in
question, it is clear that they do not now perform
duties which justify their classification as managerial
personnel. The management trainees , by their very
nature, do not currently occupy positions of respon-
sibility, nor do they utilize any sort of independent
discretion in the formulation or effectuation of
management policy, even in the temporary capacity
of an apprentice. As noted earlier, the day-to-day
work routine of management trainees bears all the
indicia of employee status. They work side by side
with rank-and-file office clericals, performing the
same work on the same equipment. They are subject
to the same supervision as the office clericals and
receive the same discipline when found in violation
of company rules and regulations. Also, as noted
above, management trainees are not locked into a
"course of study" which at some date certain results
in "graduation" into the ranks of management.
NLRB No 64 (1975) Westinghouse Broadcasting Company, Inc (WBZ-TV),
215 NLRB No 26 (1974) General Dynamics Corporation , 213 NLRB No.
124 (1974)
S General Dynamics Corp, supra This had been the Board's definition of
managerial employee since Eastern Camera and Photo Corp, 140 NLRB 569
(1963)
6 General Dynamics Corp, supra.
7 Westinghouse Broadcasting Co, Inc (WBZ-TV), supra.
CURTIS INDUSTRIES DIVISION OF CURTIS NOLL CORPORATION 1449
Rather, they linger on indefinitely performing unit
work until Respondent deems them ready to fill a
management slot, an event which is fraught with
uncertainty. Not counting the 6 current management
trainees, 22 employees have in the past participated
in the management trainee program. Only slightly
more than 50 percent, 12 people, have eventually
filled management slots, while 10 others have quit or
been terminated. Given the sheer speculativeness of
managerial assignments for management trainees,
and the utter lack of managerial tasks performed by
them while awaiting such assignment, my colleagues'
classification of management trainees as managerial
personnel is ill-conceived and without any factual
basis whatsoever.
Moreover, regardless of the certainty of a "mana-
gerial" assignment, my colleagues' questionable
attempt to categorize management trainees as man-
agement personnel is in any event premature. There
is very little evidence in the record to indicate what
particular "management" position each individual
management trainee is being groomed for, much less
what kind of duties and responsibilities the manage-
ment trainee will have upon achieving it. I use
quotation marks advisedly, for it is entirely conceiv-
able that many, if not all, of the management trainees
are being trained for positions which the Board
would regard as employee positions, even though
Respondent, in good faith or otherwise, might regard
them as managerial positions.8 The trouble is that we
just don't know at this juncture what these people
will be doing when, and if, they successfully complete
the program. This is precisely why the Supreme
Court in Bell Aerospace directed the Board to inquire
into the actual duties of the alleged managerial
employees, and precisely why the Board, in subse-
quent' cases , has dwelled on the current job descrip-
tions and responsibilities of personnel acting in their
present capacity as alleged managers. To now resolve
the issue of managerial status on the uncertain basis
of what these personnel may be doing at some
indefinite future date is a clear and, in my estimation,
unjustified departure from the Board's past analyti-
cal practice in this area .9
The result reached by the majority has anomalous
and unsettling implications. Since it is unclear from
the record what the exact nature and scope of the
managerial duties of any given management trainee
9 In fact, the record does show that two management trainees were
striving for, or were offered , such "management" slots as accountant and
buyer, positions the managenal nature of which is questionable at best. See
N L RB v. Bell Aerospace, supra, General Dynamics Corp, supra
9 This concentration on a person 's present as opposed to future job
duties is totally in keeping with Board precedent On numerous occasions
we have found so-called supervisory trainees to be employees rather than
supervisor personnel and thus protected by the Act, since their eventual
promotion to a supervisory position was speculative. See Ramona 's Mexican
Food Products, Inc., 217 NLRB No. 153 ( 1975); Reliance Insurance Company
will be, assuming of course he does eventually fill a
management slot, it is entirely possible that he may
fill a position which the Board would find in reality
not to be managerial. In such a case, it would indeed
be ironic, and unjust, to have denied the basic right
to organize only to recognize belatedly 2 months or 2
years later that he had the right all along.
My colleagues think the bestowal of the statutory
right to bargain collectively upon management
trainees creates "a conflict of interest with their job
responsibilities and announced training goals." I do
not preceive such a conflict. Surely, no aspect of their
present job responsibilities, consisting solely of
nondiscretionary rank-and-file work, is inconsistent
with their participation in a labor organization; and
the nature and scope of their "announced training
goals" are so undefined as to render any analysis of
the extent of conflict of interest idle speculation.
I likewise find it difficult to fathom the unelaborat-
ed concern of my colleagues that union participation
by management trainees will somehow diminish
Respondent's right to select and control its own
managerial representatives. Respondent can surely
judge the progress of its trainees and promote to
management positions whomever it thinks most
qualified regardless of the extent of the specific
trainee's union participation. Such staffing of super-
visory or managerial positions with organized rank-
and-file employees is a most common occurrence.
Respondent retains ultimate control over its manage-
ment representatives; once it promotes a trainee to a
truly managerial position, it is free to order him to
refrain from all union activity and would be justified
in disciplining and even discharging him if he
persisted in such activity.
For all these reasons, I see no alternative whatsoev-
er than to treat management trainees as employees
and thus afford them the protection of the Act until
they start performing work which the Board deter-
mines involves sufficient discretion to warrant calling
them managerial.10 By prematurely labeling manage-
ment trainees who perform exclusively as employees
as "managerial" personnel, on the vague and
speculative assumption that at some future date they
may be performing managerial duties, my colleagues
have denied an innumerable number of employees
the most basic right guaranteed by our Act, the right
of self-organization for the purpose of collective
and Planet Insurance Company d/b/a Reliance Insurance Companies, 173
NLRB 985 ( 1968), Hilton -Burns Hotel, Co., Inc., 167 NLRB 221 (1967);
American Cable Systems, Inc, 161 NLRB 332 (1966). There is no reason why
the same logic should not be applied when evaluating the employee status of
managerial trainees
mo I would therefore remand this case to the Administrative Law Judge
for appropriate findings of fact and conclusions of law regarding the
numerous unfair labor practices alleged in the complaint to have been
committed against the management trainees.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection. I
cannot participate in such a result and therefore
dissent.
DECISION
products valued in excess of $50,000 from its Ohio plant to
points located outside the State of Ohio.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On May 7,
1974, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
hereinafter called the Union, filed with the Regional
Director for Region 8 of the National Labor Relations
Board, hereinafter called the Board, a charge alleging that
Curtis Industries, Division of Curtis Noll Corporation,
hereinafter called Respondent, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, hereinafter called
the Act, by various acts and conduct including the
discharge from employment of Gary Roark and Neil
Wakeman, both management trainees . On June 21, 1974,
the Regional Director for Region 8 of the Board issued a
complaint and notice of hearing alleging that Respondent
violated Section 8(a)(1) and (3) of the Act by the discharge
of Roark and Wakeman; and by issuing written repri-
mands to Roark, Wakeman, and three other employees,
Bill Baus, James Robb, and Patrice Pandy, by various
threats and interrogations , and by granting fringe benefits
and wage increases to clerical employees and management
trainees , Respondent further violated Section 8(axl) of the
Act. By its duly filed answer Respondent denied the
commission of any unfair labor practices, admitted that its
supervisor, Diane Urban, requested an employee to
remove a union button , admitted the discharge of Roark
and Wakeman for cause, admitted the increase of wages
and fringe benefits but contended that this was pursuant to
a program of evaluation commenced before the start of the
organizational campaign, admitted issuing written repri-
mands as alleged but stated that they were for cause and,
as an affirmative defense, contended that Roark and
Wakeman are managerial employees excluded from the
protection of the Act. On the issues thus drawn, the matter
came on for hearing before me on August 7 and 8, 1974.
All parties were present and represented by counsel and
had an opportunity to call and examine witnesses and to
adduce relevant and material evidence. At the close of the
hearing the parties waived oral argument. Briefs have been
received from General Counsel and the Respondent. On
the entire record in this case and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The General Counsel alleges and Respondent admits
that Respondent is an Ohio corporation with its principal
office and place of business located in Eastlake, Ohio,
where it is engaged in the marketing of automotive
replacement parts and industrial maintenance supplies and
the manufacture and distribution of key duplicating
machines and key blanks . Respondent annually ships
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's warehouse and factory employees have
been represented since 1946 by another local of the United
Auto Workers. During this period of time its relationship
with the union representing its production and mainte-
nance employees has been excellent, there have been no
strikes or lockouts, no grievances have gone to arbitration,
no charges have been filed with the Labor Board, and no
complaints have issued against the Company. During the
same period of time there have been several union elections
for the office employees; in none of them has the Union
prevailed, and the office employees have remained unrep-
resented.
The present organizational drive commenced on or
about February 12 or 13 when a representative of the
Union was advised that the clerical employees were
interested in union representation . He met with a small
group of employees including Neil Wakeman, Gary Roark,
and Bill Baus. He handed out cards which they com-
menced distributing among their fellow employees.
On March 12, 1974, the Union advised Respondent by
letter that 10 employees, including Roark, Wakeman,
Robb, Baus , and Pandy, were members of the Union's
mteroffice organizing committee and urged the Respon-
dent to take no action of intimidation, coercion, discrimi-
nation, or retaliation against them . On March 15, 1974,
Respondent's attorney, Wiener, wrote to Mr. Cuncic, the
International representative who signed the letter of March
12, acknowledging receipt of his letter and stating that
Baus , Roark, and Wakeman are management trainees who,
in Mr. Wiener's opinion, are part of management and
stating further that James Robb is employed in a
confidential capacity. Also on March 12 the Union filed a
petition, docketed as Case 8-RC-9415, seeking an election
in a unit of all office clerical employees, excluding
technical, managerial, confidential, and professional em-
ployees, guards and supervisors and all other employees.
On April 9, after a hearing of which the status of the
management trainees and of Mr. Robb comprised a large
part, the Regional Director issued a Decision and
Direction of Election in which he found that the manage-
ment trainees were ineligible to vote because they do not
share a community of employment interests with the
employees in the unit. The Regional Director also found
that Robb was an accountant, a member of a group of
accountants all of whom he found to be members of the
bargaining unit.
Throughout the union organizing campaign Roark and
Wakeman , the alleged discriminatees herein, took a very
CURTIS INDUSTRIES DIVISION OF CURTIS NOLL CORPORATION 1451
active part in the campaign. This led dunng the campaign
to Roark being given a written reprimand for soliciting on
behalf of the union organizing effort on his working time
and threatened with termination if this activity continued.
On the day that they learned that they had been excluded
from the unit by the Regional Director's decision, both of
them, together with a third employee who is not a
management trainee , distributed handbills to the desks of
all of the employees in the unit whom they considered not
to have been "locked in" to a pro or con position with
regard to the Union up to that time . They did this during
their luncheon break, although some of the employees to
whom they gave the literature were working at their desks
at the time. They were observed by Personnel Manager
Dealy who picked up one of the handbills and concluded
after reading it that its contents were of such a nature that
it displayed somewhat less than the loyalty that Respon-
dent expected of its managerial trainees . Upon the return
of the Company's president, who was out of the office at
the time , Dealy took up the matter with him and a
determination was made to discharge Wakeman and
Roark. Each was called into the office separately and
discharged for distributing the handbills.
On March 2 and 3, Respondent announced to all of its
employees certain changes in their wages and working
conditions. At the same time it announced to its manage-
ment trainees that they would thereafter be placed on a
straight salary basis, that they would be "excepted"
employees, and that as a result of this change their Blue
Cross would be paid entirely by Respondent and other
favorable changes would result in their working conditions.
In addition each was given a raise of $5 a week. These
wage increases and changes in conditions of employment
are contended by the General Counsel to have resulted
from the union organizing campaign and to violate Section
8(a)(1) of the Act.
B. Discussion and Conclusions
A threshold issue , which may be dispositive of the issues
concerning the discharge of Wakeman and Roark, con-
cerning the reprimands issued to Wakeman, Roark, and
Baus and various acts of "threats and interrogation," is
whether the management trainees as a class , and those
three individuals as members of that class, are within or
without the protection of the Act. If they are within the
protection of that Act, as the General Counsel contends,
clearly the discharges are violative, and possibly the 8(a)(1)
allegations specified. On the other hand, if they are to be
considered as management people, it does not matter
whether Respondent took the actions it took from union
animus and in order to discourage their union activities;
management had a right to do so.
On April 23, 1974, in its Textron decision,' the Supreme
Court found that managerial employees, although not
specifically excluded by the Act or any of its amendments,
are not covered by the Act, agreeing with the U.S. Court of
Appeals for the Second Circuit2 that the Board had in the
past excluded managerial persons from the protection of
the Act and "is not now free to read a new and more
restrictive meaning into the Act." The court in Textron
remanded the case to the Board to apply the proper legal
standards in determining the status of the employees
concerned therein, expressing no opinion whether they fell
into the category of "managerial employees." The court
then stated in footnotes 19 and 20:
The Board has had ample experience in defining the
term "managerial" in the manner which we think the
Act contemplates. See, e .g., Eastern Camera and Photo
Corp., [140 NLRB 569, 571 (1963)]. Of course, the
specific job title of the employees involved is not in
itself controlling. Rather, the question whether particu-
lar employees are "managerial" must be answered in
terms of the employees' actual job responsibilities,
authority, and relationship to management.
To be sure, it would also be appropriate for the
Board to exclude employees from a unit on the ground
that participation in a labor organization would create
a conflict of interest with their job responsibilities. New
England Telephone, 90 NLRB 639 (1950). See also
Retail Clerks International Assn. v. NLRB., 125 U.S.
App. D.C. at 65-66, 366 F.2d, at 644-645.
The question remaining is whether these management
trainees are managerial employees within the category
which lies outside the protection of the Act or whether,
because of their status as "trainees," they fall without the
protection of the Act.
The Regional Director in the representation case
decision held that the nine managerial trainees then
employed were to be excluded from the unit of office
clerical employees finding that they did not share a
community of employment interests with the employees in
the appropriate unit. The decision states:
In arriving at this conclusion I ascribe particular
significance to the following undisputed factors. Man-
agemient trainees are recruited and hired because of
their special educational backgrounds, accept employ-
ment with a designated managerial goal in mind,
remain with the employer only if they successfully
complete the program, are paid a substantially higher
rate of pay than regular employees in equivalent
positions, and have dissimilar conditions of employ-
ment from those of employees in the unit.
The record reveals that the managerial trainees did
precisely the same work as the employees beside whom
they worked who are members of the unit. They had
nothing to do with managerial decisions, and had no
confidential knowledge either of the Respondent's labor
relations policies and procedures or of the Respondent's
trade secrets or other confidential matters. Their ability to
pledge Respondent's credit was subject to the same
limitations as the employees beside whom they worked.
I N.L KB. v. Bell Aerospace Company, Division of Tetron, Inc., 416 U.S.
267
2 475 F.2d 485 (1973).
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They performed no supervisory functions and on a day-to-
day basis were themselves supervised by the same
individuals who supervised the other clerical employees.
The Board has seldom dealt with management trainees
except in relation to the issue of their placement in units of
rank-and-file employees . In Henriksen, Inc., d/b/a Gibson
Discount Center, 191 NLRB 622, 625 (1971), relied on by
the General Counsel , the Board dealt with an employee
who was characterized as "a kind of management trainee,"
who was "being trained , or at least tried out ," with the idea
that he might be eventually promoted to a managerial
position . In that case he was held to be a member of the
unit, because , while he might well have been excluded if
the unit had been determined by the Board, the unit was
agreed upon by the parties and they included him or at
least did not specifically exclude him . In Big N Department
Store No. 333, 199 NLRB 174 (1972), also relied on by the
General Counsel , three management trainees who were in
a 3-to-6-year program in which they might spend 6 months
to 3 years in a given store , functioning as department heads
with the same benefits , wages , and working conditions as
other employees , hourly paid at a rate comparable to other
department heads and stipulated to be included in the unit,
were included in the unit by the Board . Similarly, in
Montgomery Ward & Co., Incorporated, 131 NLRB 1436
(1961), the Board held that a group of management
trainees working beside clerks performing the same duties
under essentially the same conditions of employment and
immediate supervision had no community of interest with
the rank-and-file employees and had interests more closely
allied with those of management and therefore excluded
them from the certified units. The General Counsel
distinguishes the situation in the instant case from that in
Banco Credito y Ahorro Ponceno, 160 NLRB 1504 (1966),
where management trainees were excluded from a bargain-
ing unit of banking employees , pointing out that there the
trainees were undergoing a formalized training program
with a definite duration . This was also true in the
Montgomery Ward case cited above . In Diana Shop of
Spokane, Inc. and Hughes Apparel, Inc., 118 NLRB 743
(1957), management trainees who served for periods of 3 to
6 months, depending on previous experience , being trained
essentially for the purpose of preparing them for store
manager positions , were excluded from a unit of selling
and nonselling employees in a retail store in view of their
supervisory training as well as the temporary nature of
their employment. In WTOP, Inc., 115 NLRB 758 (1956),
the Board , discussing whether floor directors who were
involved in a supervisory training program "have the
interest of supervisors and stand in the position of such
under the Act," found that the floor directors although
they had no supervisory authority were participating in the
training program designed to prepare them to assume the
responsibilities and duties of supervisors and are accord-
ingly not employees within the meaning of the Act . In that
case the Board took special note of the fact that the
employer was selective of applicants for the program, that
the trainees did not continue with the employer upon
completion of the training program unless retained as a
supervisor, and that the training program covered a
definite period of time . If the employee's future assumption
of supervisory duties is in any way speculative he is held
not to be a supervisor and is included in the rank -and-file
unit . In Rish Equipment Company, 150 NLRB 1185, 1202
(1965), the Board adopted the decision of Trial Examiner
Thomas N. Kessel in which , discussing the status of a
person in training for a managerial or sales position, he
found him excludable from the unit of rank-and-file
employees, stating "as a trainee for a position at a
managerial or sales level his interests were aligned with
persons in these categories and not with employees in the
appropriate unit." The only evidence cited by Trial
Examiner Kessel was testimony that the management
trainee in question was a college student studying to
become an engineer who had been hired to be trained by
the employer for a position in management or sales in
which he could use his engineering education.
From the above cases it appears that the factors which
must be applied in the instant case are fourfold. First,
selectivity in hiring based on the management trainee's
possession of relevant education or experience; second, a
specificity of future employment prospects, that is to say,
the management trainees must be shown to have no
alternatives other than to go into management ultimately
or to leave the employ of the employer. If it appears that
they would not be kept on as employees if they failed to
qualify in the managerial jobs to which they are assigned,
the factor is met . Third, there must be a planned
management-trainee program . It may be noted that the
duration of such program does not appear to be much of a
factor; the decisions range from several weeks to several
years. Finally, the cases reveal that a considerable factor is
a showing of a distinction of wages and working conditions
between the management trainees and the employees
beside whom they worked.
Applying these tests to the management trainees in the
instant case , we find that in the recruitment of manage-
ment trainees Respondent looks to their completion of
some relevant higher education. Each of the management
trainees had completed some college work and some of
them were continuing in their college work while in
Respondent's employ. We find further that in the history of
the management training program, all trainees had either
advanced into management positions or had left Respon-
dent's employ. While there does not appear to have been a
rigidly controlled program for training, each of the
management trainees was placed in one or another of the
two jobs that required access on the part of the trainees to
all parts of Respondent 's enterprise. In addition each of the
trainees was expected to spend at least a day working with
one of the salesmen and to attend training sessions
conducted by managerial personnel of Respondent. It
appears that some of the clerical employees were permitted
to attend some of the training sessions or to accompany
salesmen on a need -to-know basis or for their own
enhancement if they could be spared from the work they
were doing . This does not necessarily militate against
consideration of this factor. Finally, the management
trainees in Respondent 's employ were all paid at a rate
considerably higher than that of the employees beside
whom they worked and after the institution of the wage
and salary and job evaluation program, which will be
CURTIS INDUSTRIES DIVISION OF CURTIS NOLL CORPORATION
discussed below, the management trainees were placed in
an exempt status and given the same fringe benefits as
supervisors and managerial employees rather than those
enjoyed by the clerical employees beside whom they
worked.
I find under all the circumstances discussed above, that
the interests of the management trainees in Respondent's
employ were aligned with persons in management and not
with the employees in the appropriate unit. I find further
that as managerial trainees they were in fact part of
management and under the decision of the Supreme Court
in Textron, supra, are without the protection of the Act.
This being so, the complaint must be dismissed insofar as it
is alleged that by the discharge of Gary Roark and Neil
Wakeman, Respondent violated Section 8(a)(3) of the Act.
Also, insofar as the complaint alleges that Respondent
violated Section 8(a)(1) by issuing written reprimands to
Gary Roark, Bill Baus , and Neil Wakeman; threatened
and interrogated Roark concerning his union activities;
and granted wage increases, created new fringe benefits,
and increased previously existing fringe benefits for
management trainees, the complaint also must be dis-
missed.
General Counsel contends that on or about March 4,
1974, Respondent violated Section 8(a)(1) by granting
wage increases to all clerical employees in order to
discourage their support of the Union. The record reveals
that commencing early in 1973, the Respondent was
engaged, through its Personnel Manager Kurzawa, in a
complete review and job evaluation of its clerical staff.
This was motivated by the realization that Respondent was
having difficulty recruiting and keeping clerical employees
because its wage structure had fallen behind that in its
geographical neighborhood. Kurzawa embarked on a
large-scale survey of the area and in the fall of 1973 finally
presented a program of job evaluations and wage increases
that was duly considered by his superiors and apparently
completely rejected, along with Mr. Kurzawa. His place
was taken by the present director of personnel and
industrial relations, Robert M. Dealy, who was told on his
hire that it was a matter of first importance to complete a
survey and review and come forward with ajob evaluation
and pay scale. It became apparent to Mr. Dealy, very
quickly, that this would take a considerable period of time
and he prevailed upon management to announce to the
employees that the job evaluation was taking place and to
give them a raise . This resulted in a $5 per week increase
across the board to all clerical employees which was
accompanied by a "stuffier" enclosed in the pay envelopes
of the clerical employees on November 15, 1973. The
following is the text of the "stuffer":
Dear Fellow Employees:
The company is presently working on a program to
reassess the evaluation and classification of all non-
exempt salaried positions. We expect this study to
result in a general up-grading of our salary ranges.
Since the program cannot be completed until the end of
the year, we are making an interim adjustment to all
salaries . This is reflected in the $5 per week increase
you have received with this pay disbursement.
M. Schor, President
1453
The salary evaluation was finally completed and adopted
some time in February, and on March 4, at a series of
meetings with the affected employees, the announcement
was made to them of the wage increases that resulted
therefrom.
It is an interference with employees' organizing rights to
grant them a wage increase in the middle of an organizing
campaign to discourage their union activities. However,
the Board has frequently and uniformly held that employ-
ers need not withhold normal or previously planned wage
increases because of the inception of an organizing
campaign. There can be no question in view of the
"stuffer" of November 15 that Respondent was engaged,
prior to the inception of the union organization, in its
salary reevaluation program and had informed the employ-
ees of this fact. To have withheld action after the inception
of the union campaign would surely have been a greater
interference with the employees' organizational rights than
to have gone ahead with the previously announced
program. I find no violation and shall recommend that the
complaint be dismissed insofar as this is alleged to be
violative of the Act.
In addition to the written reprimands issued to Roark,
Baus , and Wakeman Respondent caused written repri-
mands to be issued to James Robb and Patrice Pandy,
both announced members of the union organizing commit-
tee and both well known to Respondent to be union
adherents. The General Counsel contends that Respondent
violated Section 8(a)(1) by the issuance of these repri-
mands. It appears that the General Counsel's position is
based on three separate arguments. First, that Respondent
selected these individuals for reprimand because of their
union adherence; second, that in the case of Robb the
reprimand was for violation of a nonexistent no-solicita-
tion rule; and third, that by the issuance ,of written
reprimand, rather than verbal reprimand which had been
given in the past, Respondent was acting in a discriminato-
ry fashion.
The record reveals that Patrice Pandy, whose absentee
record was characterized by General Counsel as a
"catastrophe" after asking for a leave of absence during the
week of March 11 to March 15, to go to Florida, and being
turned down nevertheless took off and was absent during
that period. Her immediate supervisor went to manage-
ment and requested that she be summarily discharged.
However, after discussion with Industrial Relations Man-
ager Dealy, it was decided in view of the fact that Ms.
Pandy was a member of the union organizing committee to
deal cautiously with her and to issue a written reprimand.
This was issued on March 29, 1974. The reprimand states:
Your actions during the week March 11, to March 15,
1974, concerning your trip to Florida, and your abrupt
departure without notice, constitutes a most serious
break of good faith and good working relations.
This matter, on top of your continuing totally unsatis-
factory attendance record has placed the continuation
of your employment with Curtis Industries , Inc., in
jeopardy.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as we have bent over backwards to accom-
modate your work schedule needs, it is with regret that
I must formally warn you that any further unexcused
absence or tardiness will lead me to take severe
disciplinary measures.
With regard to Robb, Dealy testified that he had been
receiving complaints from department heads all over the
factory that Robb had been wasting the time of the
employees under their supervision by talking to them
about the union organization. One specific instance cited
and demonstrated on the record involved an attempt by
Mr. Robb to convince Shirley Higgenbotham, a secretary
to one of the management officials, to support the Union.
Robb testified that the conversation with the secretary
resulted from a question asked by her. The final action
which resulted in the issuance of a reprimand was a
conversation between Robb and a shop steward in the
production portion of the plant which, according to Dealy,
was reported to him as having involved questions by Robb
as to organizing tactics. Robb denied that this conversa-
tion , which he admitted took place, had anything to do
with the Union but stated that it was a matter of business
in connection with his duties. Robb also denied engaging
in organized activities except on his breaktime and before
and after work. However, it is clear and I find that at least
with regard to Shirley Higgenbotham, Robb's organizing
activities took place on her worktime. Robb testified that
after a conversation with Dealy in which Dealy told him
that he had been observed organizing in the plant, he no
longer sought to recruit supporters for the Union but
would answer questions and enter into conversations when
other people brought-the subject up. I find no evidence that
Robb, in any respect other than in the interview with Mrs.
Higgenbotham, did any organizing on company time.
With regard the issue of whether Respondent's activities
in issuing reprimands were violative because Respondent
was for the first time using written reprimands rather than
verbal, Respondent, through Mr. Dealy, admitted that
verbal reprimands had been given in the past but that
written reprimands had not. When the union organization
campaign began Dealy, who was aware of the inhibitions
required of management under the Act, concluded that the
reprimand system should be regularized, particularly when
it applied to employees who had been announced by the
Union to be members of the inplant organizing committee.
There is no rule regarding reprimands such as that a
certain number of reprimands would lead to a more severe
punishment or that a written reprimand is of more seventy
or has an effect different from a verbal reprimand. There is
no question that a verbal reprimand had been given in the
past; the only change is that they were not put in writing. I
conclude, under all the circumstances in this case, that the
change from verbal to written reprimands, even though it
resulted from the union organization, was not designed to
nor would it reasonably be expected to have the effect of
interfering with, restraining, or coercing employees in their
union activities. Accordingly, I reject this theory of the
General Counsel's.
With regard the reprimand issued to Patrice Pandy I find
no violation. The Board has in the past held that the fact
that an employee is engaged in organizing for a union does
not relieve the employee from the duty to follow the
employer's reasonable rules nor insulate the employee from
sanctions applied by the employer for his failure to follow
such rules. In the case of Ms. Pandy, even the General
Counsel admits that her attendance record was very poor
and in addition the incident that occasioned the repri-
mand, deliberately taking off from work after having been
denied a leave of absence, cannot be said to be an
infraction of such little weight that Respondent's failure to
ignore it raises any inference. Indeed, the evidence reveals
that only because of Ms. Pandy's union activity was she
allowed to remain; her supervisor wanted to discharge her
and Dealy reduced the sanction to a reprimand because
she was a union activist. I find no violation in anything
Respondent did in this regard and I shall recommend that
the complaint be dismissed insofar as the reprimand issued
to Ms. Pandy is involved.
Finally, with regard to James Robb, the reprimand
issued him states:
This is to advise that your recent actions, involving
soliciting on behalf of the union organizing effort, on
your working time, constitutes unacceptable behavior.
These activities on your part have been of a continuing
nature of late.
This letter is to inform you that any continuance of
such activity will result in the termination of your
employment with Curtis Industries, Inc.
There is no substantial evidence other than that of Ms.
Higgenbotham that Robb ever engaged in any union
activities on his working time and he stoutly denied that he
had done so. The incident which lead to the issuance of the
reprimand, i.e., the conversation with the shop steward in
the production unit, was not shown to have been other
than his normal work.3 Although Dealy testified that he
had been informed that a supervisor had overheard Robb
talking about union affairs with the shop steward, no
evidence to that effect was adduced. Neither the shop
steward nor Dealy's informant testified in this proceeding.
It thus appears that with the exception of the Higgenbot-
ham conversation, Robb never engaged in unprotected
activity in his organizing efforts. With regard to the
Higgenbotham matter, Robb's testimony is that Mrs.
Higgenbotham started the conversation, while her testimo-
ny is that he started it. I have found him otherwise credible.
Mrs. Higgenbotham on the other hand testified that the
conversation commenced in the hall, that Robb, with
whom she was otherwise acquainted, asked her if she had
heard about union cards being passed around and she
asked him who was passing them out. He did not answer
and then they went on to talk about the benefits that the
Union was promising. There is no indication that Robb
solicited her at that time, or that the conversation even
took place after he himself had decided to join the Union.
This single incident would scarcely seem to warrant a
8 Admittedly , Robb's duties led him to all parts of the plant on a daily
basis
CURTIS INDUSTRIES DIVISION OF CURTIS NOLL CORPORATION 1455
written reprimand. However, Respondent's failure in this
regard appears to have been more a failure to investigate
whether he was soliciting broadly on his working time as
had been reported to Dealy by a number of supervisors. I
note that Robb, prior to the advent of the Union, had been
given a verbal reprimand for soliciting on his working time,
for private business that he conducted on the side.
Accordingly, he was not unaware of the fact that there was
a rule against using working time for private business.
Under all these circumstances, and in consideration of the
fact that Respondent through its long history of union
organization and of dealing with the same union represent-
ing its production employees had never been accused of
union animus, I do not believe that the reprimand issued to
Robb was calculated to interfere with, restrain, or coerce
employees in the exercise of their protected rights and I
accordingly find no violation in it.
The General Counsel contends that by action of a
supervisor, Urban, in telling a girl to take off a union
button, Respondent violated Section 8(aXl) of the Act.
The record reveals that Urban told this girl to take off her
union button, the girl took it off and placed it elsewhere on
her person, the supervisor then reported the incident to her
superior, and was told that she had no right to tell an
employee to take off the button, wherefore she went to the
employee, rescinded her instruction, and apologized for the
incident. I agree with Respondent's counsel that this
incident does little more than reveal Respondent's good
faith in its attempt to comply with the law. I find no
coercive impact whatsoever in the incident and I recom-
mend that it be dismissed.
Finally, the General Counsel contends that by conduct-
ing employee meetings with groups of employees, Respon-
dent through its President Schor violated Section 8(a)(1) of
the Act by soliciting grievances from employees. The
record reveals that President Schor called the affected
employees together in groups as large as possible in the
limited space at his disposal for such meetings, where he
informed them that he was aware of the union organization
and expressed his opposition to an office union, giving his
reasons for such opposition. He discussed Respondent's
wage and classification scheme and pointed out to the
employees that they had been informed before the union
organization of the reevaluation program that would
probably result in wage increases. At the end of each talk,
Mr. Schor by one means or another let the employees
know that he was prepared to discuss any grievances that
they might have and in each group certain grievances were
brought to light. These grievances, which had to do with
cost of living, a comparison of benefits between the office
and the warehouse, the Blue Cross Plan, overcrowded
conditions in the office and in the parking lot, and the
cleanliness of the building and the areas in which the office
employees worked, were accompanied by employee sug-
gestions as to what might be done about these grievances.
At least one of the suggestions was subsequently acted
upon by management, resulting in a major reorganization
in the office.
The General Counsel, citing Central Diagnostic Laborato-
ry, 206 NLRB 754 (1973), and Swift Produce, Inc., 203
NLRB 360 (1973), contends that by soliciting employee
grievances Respondent impliedly promised that these
grievances would be remedied and that by making such
promises of benefit to the employees against the back-
ground of the Union's organizational campaign, Respon-
dent violated Section 8(a)(1) of the Act. It is my opinion
that Respondent's good-faith attempt to avoid any breach
of the Act has been amply demonstrated throughout this
hearing. I conclude that Respondent made no attempt by
these meetings to implant in the employees minds the
inference that it would change the working conditions if
they were to reject the Union. The inference that I would
draw is that management was honestly seeking to find out
what the gripes of the employees might be and on what
basis their interest in joining the Union was formed.
Management had been attempting to cope with a very
substantial increase in its business which had required a
very substantial increase in its office force, and was aware
that it had fallen behind in many respects in giving its
office employees the working environment best suited to
their needs. I find nothing violative in its attempt to
measure the extent to which the employees were discon-
tented by their failure to keep up the conditions. I find that
in these meetings Respondent neither interfered with,
restrained, nor coerced employees nor intended to do so.
Even, however, were I to find that the actions of
Respondent, in giving the employees an opportunity to air
their gripes in these meetings , violated the Act by raising
the inference that a promise of improvement was implicit
in the solicitation of grievances, I would find, in view of
Respondent's demonstrated good faith in other respects,
no warrant for the issuance of a remedial order. This is at
most an isolated occurrence, not calculated to have a
continuing coercive affect. Accordingly, I shall recommend
that it be dismissed.
Conclusions
Having found that each of the unfair labor practices
alleged in the complaint should be dismissed, I hereby
recommend that the complaint be dismissed in its entirety.
6 U S GOVERNMENT PRINTING OFFICE 1976 0-203.314