General Truck Drivers, Local 692

National Labor Relations Board - Board Decisions

Apr 8, 1974

209 N.L.R.B. 1144 (N.L.R.B. 1974)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers , Chauffeurs and Helpers Union
Local No. 692 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen, and Helpers
of America and Absco Distributing. 'Case
31-CB-1145.
April 8, 1974
DECISION AND ORDER
On August 28, 1973, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding. Thereafter, Respondent. filed excep-
tions and the General Counsel filed a letter in answer
thereto.
The Board has considered the record and the
attached Decision in light of the exceptions and the
answering letter and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge only to the extent that they are
consistent herewith.
We agree with the Administrative Law Judge that
Darlene Foster is a confidential employee because
she assists and acts in a confidential capacity to the
Employer's president who formulates, determines,
and effectuates management policies in the field of
labor relations.' As both the Board's certification
and the subsequent collective-bargaining agreement
of the Employer and the Union exclude confidential
employees from the office clerical unit involved
herein, we also adopt his finding that Foster is not
properly in the unit and is therefore not subject to
the union-security clause. However, the record
shows, inter alia, that her name was on the Excelsior
list, that she cast an unchallenged ballot, and that the
collective-bargaining agreement contains a book-
keeper classification which was apparently intended
to apply to Foster.2 Because these considerations
may have misled the Union into believing that Foster
was in the unit, we do not adopt the Administrative
Law Judge's finding that the Union, whose conduct
was prompted by this belief, violated the Act by
seeking her discharge under the union-security
clause.3 Accordingly, in view of the mitigating
circumstances herein, we shall dismiss the complaint
which alleges said violation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
i In addition , Foster spends part of her time in performing bookkeeping
functions
2 Although the agreement provides hourly rates for employees in this
category, Foster receives a salary.
209 NLRB No. 155
CHAIRMAN MILLER AND MEMBER PENELLO, concur-
ring:
Our colleagues rest their decision on the ground
that Foster may, possibly through a misunderstand-
ing by the Union, have been included in the parties'
collective-bargaining agreement. We also find she
was included; and we also would dismiss the
complaint, but for different reasons.
There is no statutory prohibition against including
a particular confidential employee-or all confiden-
tial employees, for that matter-in a collective-
bargaining agreement. Surely the Employer here was
under no misapprehension, since it included Foster
on the Excelsior list and agreed to include, in the
contract, a classification which could have applied
only to her; moreover, any "policy" favoring the
exclusion of confidential employees would be for the
Employer's benefit and could surely be contractually
waived by it. Nor was the Union under any
misapprehension: it agreed to the contractual terms
also, and thereafter sought to have Foster live up to
its provisions. An arbitrator, duly chosen by the
parties, has confirmed this interpretation of the
parties' agreement,4 and we would defer to his award
under the Speilberg doctrine.5
We conclude that the Union did nothing more than
seek to apply its collective-bargaining agreement to
an employee apparently-and found by an arbitrator
to have been-within the contractual unit, and we
would dismiss the complaint on these grounds.
Because of our differing basis for dismissal, it will
be observed that we disagree with, and dissociate
ourselves from, our colleagues' conclusion that
Foster is not subject to the contract's union-security
clause-a finding which is contrary to the evidence
and contrary to the law as we understand it.
3 Contrary to our colleagues, the collective-bargaining agreement
executed by the Employer and the Union adheres to the unit description set
forth in the Board's certification by specifically excluding confidential
employees The arbitrator failed to make the basicjudgment pertaining to
the coverage of the agreement by avoiding a determination as to whether
Foster is a confidential employee Although there may have been some
misapprehension on the part of the Union as to Fosters unit placement, the
Employer took the correct position that Foster is a confidential employee
and hence does not belong in the unit Accordingly, there is no support for
our colleagues ' assertion ( I) that the arbitrator resolved the central question
of Foster's confidential status and (2) that the Employer desired to "waive"
or deviate from the contractual exclusion of confidential employees
4 Our colleagues apparently disagree with the arbitrator 's interpretation
of the agreement We would not deem it proper to substitute our judgment
on a contractual interpretation matter for that of an arbitrator voluntarily
chosen by the parties to perform that function Our colleagues are incorrect,
in our view, when they assert that the "central question" is that of "Foster's
confidential status." It is, for the reason we have stated , that of Foster's
inclusion in the contractually agreed-upon unit , and that question the
arbitrator has clearly answered.
8 Spielberg Manufacturing Company, 112 NLRB 1080
GENERAL TRUCK DRIVERS , LOCAL 692 1145
DECISION
SIATEMENI OF IHE CASE
HERMAN CORENMAN , Administrative Law Judge: Upon a
charge filed on December 14, 1972, by Absco Distributing,
herein called the Company, the General Counsel of the
National Labor Relations Board issued a complaint on
June 15, 1973, against General Truck Drivers, Chauffeurs
and Helpers Union , Local No. 692, International Brother-
hood of Teamsters . Chauffeurs, Warehousemen and
Helpers of America, herein called the Respondent Union
or Union , alleging violations of Section 8(b)(1)(A) and (2)
of the National Labor Relations Act, as amended (29
U.S.C. § 151, et seq.), herein called the Act. The
Respondent Union's answer denied that it had violated the
Act and asserted that the Board should defer to the
decision of an arbitrator upholding the Union 's enforce-
ment of a contractual union -security clause against a
company employee named Darlene Foster, who had
refused to pay periodic dues and the uniform initiation fee
as required by the union-security clause of the collective-
bargaining agreement between the Company and the
Respondent Union.
Pursuant to notice , a hearing in this case was held before
me at Los Angeles, California, on July 18. 1973. All parties
were represented by counsel and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument , and to file briefs. Briefs were filed
by counsel for the General Counsel and by counsel for the
Respondent Union, and they have been carefully consid-
ered . Upon consideration of the entire record and upon my
observation of the witnesses and their demeanor as they
appeared before me , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
member of the Respondent Union as a condition of
employment . The Respondent Union contends that Dar-
lene Foster belongs to the unit of office clerical employees
which it represents and for which it was certified as
exclusive collective-bargaining representative and that she,
therefore , is required to become a member of the
Respondent Union as a condition of employment as
provided for by the union-secunty clause in the collective-
bargaining agreement . The Respondent Union takes the
position that its demand to the Company to discharge
Darlene Foster because of her refusal to become a member
of the Union does not violate Section 8(b)(1)(A) or (2) of
the Act.
The Respondent Union further points out that this
dispute was submitted to an arbitrator who found that
Darlene Foster was, by agreement of the Union and the
Company, included in the recognized contractual unit and
therefore was required by the contract's union-security
clause to loin the Union as a condition of employment.
The Respondent Union takes the position that the Board
should, therefore , in deference to the arbitrator 's decision,
dismiss this case . The General Counsel contends , however,
that the award of the arbitrator is repugnant to the policy
of the Act and should therefore be disregarded.
B. Background
Pursuant to a Stipulation for Certification Upon Consent
Election entered into by the Company and the Union on
February 23 , 1971, an election was held on March 24 and
on April 1, 1971, the Respondent Union was certified as
exclusive collective-bargaining representative of the em-
ployees in the following described unit:
Included : All office clerical employees , including those
in data processing employed by the employer at its
offices located at 570 Alaska , Torrance , California.
It is established by the pleadings , and I find, that the
Company, with its principal office and place of business at
Torrance , California . is engaged , among other activities, in
the sale of welding supplies to other firms , and in the
course and conduct of its business operations , annually
purchases goods and services valued in excess of $50,000
directly from suppliers located outside the State of
California. The Company is an employer engaged in
commerce and in an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted by the pleadings, and I find , that the
Respondent Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
At issue is whether employee Darlene Foster is a
confidential employee excluded from the unit of office
clerical employees and therefore not required to become a
Excluded : Confidential employees, guards, profession-
al employees , supervisors defined in the Act and all
other employees.
Under date of December 17, 1971, the Company and the
Respondent Union entered into a signed collective-bar-
gaining agreement covering the employees in the Board-
certified unit and excluding those classifications excluded
by the Board certification.
Article II of the collective -bargaining agreement con-
tained a union-security clause providing in pertinent part
that nonmember employees shall, as a condition of
employment, become and remain members in good
standing of the Union by tendering the initiation fee and
periodic dues uniformly required as a condition of
acquiring or retaining membership : on the 31st day
following the date of the execution of the agreement or the
date of hire , whichever is later . It further provided that any
employee who fails to loin or maintain his membership in
the Union as provided would be subject to termination 5
days after the Company received written notices from the
Respondent Union that such employee had not tendered
the periodic dues or the uniform initiation fee required.
Darlene Foster refused to become a member of the
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union or to tender the required initiation fee and dues.
Under date of March 16, 1972, the Respondent Union
notified the Company to terminate Darlene Foster within 5
days because of her failure to become a union member as
required by the collective-bargaining agreement's union-
security provisions. The Company by letter dated March
20, 1972, denied the Union's request that Mrs. Foster be
terminated, giving as its reason that Mrs. Foster was not in
the bargaining unit covered by the collective-bargaining
agreement. Under date of September 27, 1972, the
Respondent Union directed a letter to the Company
notifying it that Mrs. Foster. among others named therein,
had failed to make application for membership in the
Union or to pay their initiation fee and dues. The letter
further notified the Company that unless the union-
security clause of the contract was complied with, the
Union would take whatever action it deemed necessary,
including economic.
The dispute centering on the Company's refusal to
terminate Darlene Foster at the Union's request was
submitted to an arbitrator by agreement of the Company
and Union. A hearing before the arbitrator was held on
September 14, 1972. The issue relevant to this case was
defined by the arbitrator as follows:
Is the Company in violation of Article II, B of the
agreement by refusing to terminate employee Darlene
Foster after written notice from the Union requesting
that she be terminated as she has failed and refused to
pay periodic dues and the uniform initiation fee as
provided by the agreement?
The arbitrator issued his decision and award on November
14, 1972, upholding the Union's right to enforce the
contract's union-security clause against Foster, and decid-
ed that the Company was in violation of the collective-
bargaining agreement by refusing to terminate Darlene
Foster.
In support of his decision, the arbitrator stated, in part,
as follows:
The Company further contended that Foster was a
"confidential employee" within the meaning of the
National Labor Relations Act, as amended, and as
interpreted in B. F. Goodrich Co. as cited above. There
is no doubt that some of the duties performed by
Foster could arguably fall within the scope of a
"confidential employee"; however, the parties elected,
for whatever reason, to treat her for the purposes of the
National Labor Relations Board processes as a
member of the bargaining unit with all of the rights and
privileges attaching thereto. The stipulated facts about
the characterization of Foster clearly demonstrate the
intent of the parties as to her treatment. What the
Company is now asking the Arbitrator to do is to
exclude her from a bargaining unit which the Board has
recently certified as appropriate for the purposes of
effectuating the policies and purposes of the Act, as
amended. This in effect is a request to modify the
Board's determination. Had Foster's duties and activi-
ties been changed as a result of the certification, the
Arbitrator, would consider such grounds in evaluating
the propriety for such a change in her status; however,
the duties and activities were not so changed. There-
fore, the Arbitrator can find no grounds upon which to
justify a reclassification of Foster, out of the bargaining
unit.
B. The Duties and Responsibilities of Darlene
Foster
Darlene Foster is the personal secretary to Mr. Clarence
Malin and has served in that capacity for 4 years. She
occupies a private office adjacent to Mr. Malin's office.
Mr. Malin, as the Company's president since 1969,
formulates, directs, and supervises and is responsible for
the labor relations policies of the Company which involves
negotiations with several labor organizations, including
such matters as negotiating collective-bargaining agree-
ments, resolving grievances, disciplinary actions, hiring,
terminations, granting benefits, health and welfare mat-
ters; corresponding with labor relations attorneys, the
Company's board chairman, or governmental bodies such
as the Department of Human Resources, the Internal
Revenue Service, the Pay Board and the NLRB. In this
connection, Malin dictates interoffice memoranda pertain-
ing to labor problems, such as hiring and firing, grievances,
and advice or opinions sought for labor negotiations or
contracts. As Mr. Malin's private secretary, Darlene Foster
takes all of Malin's dictation, files , and correspondence,
gathering data requested by Malin pertaining to salaries
paid by competitors, types all memos dictated by Malin,
including those relating to labor relations matters, such as
correspondence with the Company's labor relations attor-
ney or with the Company's chairman of the Board. As
Malin's private secretary, she receives, opens, and date
stamps all incoming mail, including all memoranda and
letters relating to the Company's labor relations matters.
Mrs. Foster takes all of Mr. Malin's dictation, including
such matters as letters to labor organizations, letters to the
NLRB, letters to the Department of Human Resources or
to the California Labor Commission, letters to the
Company's labor counsel pertaining to labor organization,
contract interpretation, or to grievances. Mrs. Foster also
types memoranda dictated by Malin concerning the
contents of telephone conversations with the Company's
labor relations attorney or the Company's board chairman
pertaining to labor dispute matters, as well as concerning
collective-bargaining negotiations with labor organizations.
Mrs. Foster also maintains all personnel files and all labor
relations files. She also compiles data requested by Malin
concerning wage scales of competitors and pay challenges
submitted to the Internal Revenue Service. She is required
to keep files on all these matters and has full and ready
access to them in the performance of her duties as
secretary to Mr. Malin. Mrs. Foster also performs
bookkeeping functions and she estimates that 50 percent of
her time is devoted to acting as Mr. Malin's secretary. The
balance of her time is devoted to such matters as the
preparation of the payroll and records pertaining to
personnel, such as new hires, transfers, insurance, health,
dental, pension insurance, truck accidents, and workmen's
compensation. Mrs. Foster also signs payroll checks.
Although the General Counsel contends that Darlene
GENERAL TRUCK DRIVERS , LOCAL 692
Foster is excluded from the unit of office clericals as a
"confidential employee," it is a fact, stipulated to by the
parties, that Foster's name appeared on the eligibility
(Excelsior) list submitted by the Company to the Board,
that she voted without challenge in the Board-conducted
election, and she served as the company observer at the
election. It is also not disputed that the collective-bargain-
ing agreement negotiated between the Company and the
Union under the "wages and classifications" clause,
contains a "Bookkeeper (General Ledger)" classification
which was intended to apply to Mrs. Foster.
C. Analysis and Conclusions
I agree with the General Counsel that Darlene Foster is a
"confidential employee." 1 find that she assists and acts in
a confidential capacity to the Company's president who
formulates, determines, and effectuates management poli-
cies in the field of labor relations. She should therefore be
excluded from the umt of office clerical employees because
(1) the Board's certified unit, which is also the recognized
contractual unit, expressly excludes "confidential employ-
ees," and (2) it is established Board policy to exclude
"confidential employees" from collective-bargaining units.
As early as the year 1944, in The Hoover Company, 55
NLRB 1321, the Board rationalized its policy for excluding
confidential employees in the following language:
We have previously expressed our awareness of the fact
that in negotiating and in the settlement of grievances,
the interests of a union and the management are
ordinarily adverse. Consequently, we have adhered to
the opinion that the management should not be
required to handle labor relations matters through
employees who are represented by the union with
which the Company is required to deal and who in the
normal performance of their duties may obtain
advance information of the company's position with
regard to contract negotiations, the disposition of
grievances, or other labor relations matters.
In B. F. Goodrich Company, 115 NLRB 722, the Board
pointed out that it has consistently excluded from
bargaining units as confidential employees, persons who
assist and act in a confidential capacity to persons who
formulate, determine, and effectuate management policies
in the field of labor relations. On the basis of that policy,
the Board found that the secretaries to the personnel
manager and office manager are confidential employees
who should be excluded from the unit because of the role
in past and future bargaining negotiations assigned to the
officials for whom they work. In The Grocers Supply
Company, Inc., 160 NLRB 485, 488, the Board, in
excluding secretaries as confidential employees from the
unit requested, again reiterated Board policy "that it will
exclude as confidential employees, individuals who assist
and act in a confidential capacity to persons who
formulate, determine, and effectuate management policies
in the field of labor relations." Pointing out that the two
secretaries to the two vice presidents and the secretary to
the secretary-treasurer are present on some occasions when
labor relations are discussed by these officers, including
1147
confidential meetings between officers and supervisors at
which the Employer's policy as to grievances and union
negotiations is discussed, and these two secretaries are also
responsible for preparing orders and documents in labor
relations matters, excluded them from the unit. In The
National Cash Register Company, 168 NLRB 910, 912, in
excluding 10 private secretaries to the employer's division
managers who participate in contract negotiations and in
the grievance procedure, and prepare proposals for
supplements to the basic collective-bargaining agreement,
the Board, in pointing out that the private secretaries have
custody of the employer's grievance files and prepare notes
from which the employer's contract proposals are made,
held it was clear that the private secretaries "act in a
confidential capacity to persons who formulate, determine,
and effectuate management policies in the field of labor
relations." Accordingly, the Board held the private
secretaries to be confidential employees who should be
excluded from the unit.
In Low Bros. National Market, Inc., 191 NLRB 432, the
Board, in finding that an employee named Muzio should
be excluded from the unit as a confidential employee,
pointed out that Muzio was responsible for compiling
information at the request of Low's labor relations counsel
or at the request of the union currently representing the
employer's store clerks. The Board also noted that Muzio
had on numerous occasions prepared information to be
utilized by the Board, including the preparation of charts
used by Low's labor relations counsel in a Board
proceeding. The Board also noted that "she [Muzio l
handles all correspondence between Low, his labor
relations counsel, the store clerks union, and the Board.
As I have found above that Mrs. Foster is a confidential
employee to be excluded from the unit of office clericals, it
follows that the union-security clause of the collective-
bargaining agreement was legally unenforceable against
her; and the Respondent Union's attempts to cause her to
be discharged for nonmembership in the Union violated
Section 8(b)(1)(A) and (2) of the Act. Mortuary Employees'
Union, affiliated with Seafarers' International Union (San
Francisco Funeral Service), 192 NLRB 616; International
Brotherhood of Potters, AFL-CIO (Macomb Pottery Compa-
ny), 175 NLRB 756; cf. Wheeling Electric Company, 182
NLRB 218.
I agree with the General Counsel that the Company's
inclusion of Darlene Foster on the Excelsior list, and the
fact that the Union did not challenge her vote, cannot bind
the Board to include her in the umt where it clearly appears
that she is a confidential employee. Compare Tidewater Oil
Company v. N.LR.B., 358 F.2d 363 (C.A. 2, 1966); Norris
Thermador Corporation, 119 NLRB 1301; O. E. Szekely and
Associates Inc., 117 NLRB 42. The Board is not bound by
unit stipulations of the parties which contravene estab-
lished Board policy. Fisher-New Center Company, 184
NLRB 809; Laymon Candy Company, 199 NLRB 547. I
also agree with the General Counsel that the fact that
Darlene Foster's name was included on the Excelsior list;
she cast an unchallenged ballot at the Board election; and
her job classification was included in the collective-
bargaining agreement, does not operate to estop the Board
from excluding Foster as a confidential employee; nor bar
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board from declaring the Union's conduct in attempt-
ing to cause Foster's discharge as violative of Section
8(b)(1)(A) and (2) of the Act. See Montgomery Ward & Co.,
115 NLRB 645, where the Board held that the mere fact
that a supervisor was permitted to vote in an election by
agreement of the parties, and the further fact that the
Union may have agreed to the inclusion of the supervisor
in the unit cannot result in the nullification of the statutory
exclusion of supervisors from the definition of employees
contained in the Act; nor could it prevent the General
Counsel from contending that the individual was a
supervisor. The Board said: "Assunung arguendo that, as
urged by the Respondent, the Union is estopped from
asserting that DuFour is a supervisor, that estoppel cannot
operate against the General Counsel. The present case is a
public proceeding by a public official against the Respon-
dent, and not private litigation between the Union and the
Respondent ." See also Boyer Bros. Inc., 170 NLRB 1108,
1110. The Board's position in Montgomery Ward, supra,
was approved by the second circuit in N.L.R.B. v.
Montgomery Ward' 242 F.2d 497 (1957), in the following
language:
Moreover, as the Board rightly concluded, the fact
that DeFour was included in the bargaining unit and
voted, with approval of the Union and N.L.R.B.
Regional Director, does not estop the Board from
considering his supervisory status, for neither the Board
nor the Regional Director ever made a definite
determination of his status. The Regional Director
merely approved the arrangement for the election as
agreed to by the Union and the employer. It is most
unlikely that such approval either did, or even could as
a practical matter, involve any careful study of
supervisory status.
In many cases coming before the Board, it has held that it
will not be estopped from inquiring into supervisory status
by the approval of one of its Regional Directors. See, e.g.,
The Steel Products Engineering Company, 106 NLRB 565,
576; Valentine Sugars Inc., 102 NLRB 313, 314, fn. 3.
Just as it is impermissible to include supervisors in a
collective-bargaining unit because it is contrary to the Act,
it is likewise impermissible to include "confidential
employees" because that is contrary to Board policy.
D. The Arbitrator 's Decision
I also agree with the General Counsel's contentions that
under the Spielberg r criteria the Board should not defer to
the arbitrator's decision. Initially, it is observed that
instead of deciding whether or not Darlene Foster was a
confidential employee, although that contention was made
by the Company in the arbitration proceedings, the
arbitrator concluded that "The parties elected, for whatev-
er reason , to treat her for the purposes of the National
Labor Relations Board processes as a member of the
bargaining unit with all the rights and privileges attaching
thereto." The arbitrator went on further to state in his
decision , albeit erroneously , that the Company 's request to
exclude Foster from the bargaining unit was "in effect a
request to modify the Board's determination ." The error in
this conclusion of the arbitrator is patent when it is noted
that the Board 's unit determination , expressly excluded
"confidential employees" from the unit.
It is clear , and I find , that the arbitrator 's decision should
not be deferred to and is repugnant to the policy of the
Board because (1) the arbitrator failed to decide whether
Foster was a "confidential employee" within the meaning
of Board policy, (2) the arbitrator erroneously held that the
Company's request to exclude Foster from the bargaining
unit constituted an attempt to modify the Board's unit
determination and (3 ) the arbitrator's inclusion of Foster in
the appropriate unit certified by the Board, in the face of
the Board's exclusion of "confidential employees " from the
unit , violated the Board 's unit certification . Combustion
Engineering, Inc., 195 NLRB 909; Woolwich, Inc., 185
NLRB 783.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with the operations of the
Company described in section I, above , have a close,
intimate and substantial relation to trade , traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Union has
violated Section 8(b)(1)(A) and (2) of the Act by attempt-
ing to cause the Company to discharge Darlene Foster
from its employment in violation of Section 8(a)(3) of the
Act, it will be recommended that the Respondent Union
cease and desist therefrom and take such affirmative action
as appears necessary and appropriate to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By attempting to cause the Company to discharge
Darlene Foster from employment, the Respondent Union
has violated Section 8 (b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1 Spielberg Manufacturing Company, 112 NLRB 1080.